Volume 59

Between 1950 and 2005, the composition of large public company boards dramatically shifted towards independent directors, from approximately 20% independents to 75% independents. The standards for independence also became increasingly rigorous over the period. The available empirical evidence provides no convincing explanation for this change. This Article explains the trend in terms of two interrelated developments in U.S. political economy: first, the shift to shareholder value as the primary corporate objective; second, the greater informativeness of stock market prices. The overriding effect is to commit the firm to a shareholder wealth maximizing strategy as best measured by stock price performance. In this environment, independent directors are more valuable than insiders. They are less committed to management and its vision. Instead, they look to outside performance signals and are less captured by the internal perspective, which, as stock prices become more informative, becomes less valuable. More controversially, independent directors may supply a useful friction in the operation of control markets. Independent directors can also be more readily mobilized by legal standards to help provide the public goods of more accurate disclosure (which improves stock price informativeness) and better compliance with law. In the United States, independent directors have become a complementary institution to an economy of firms directed to maximize shareholder value. Thus, the rise of independent directors and the associated corporate governance paradigm should be evaluated in terms of this overall conception of how to maximize social welfare.

By "lay Justices" I mean Justices of the Supreme Court of the United States who are not accredited lawyers. Currently the number of lay Justices is zero, although there is no constitutional or statutory rule that requires this. Commentators who urge that the Supreme Court should be diverse on all sorts of margins—methodological diversity, ideological diversity, and racial or ethnic or gender diversity—say little or nothing about professional diversity on the Court.

I shall suggest that the optimal number of lay Justices is greater than zero, under specified empirical conditions. I do not know whether those conditions actually hold, but on the other hand no one knows that they do not. It is very plausible that the conditions do hold, in which case the status quo of zero lay Justices is an implausible extreme. In the strong form of the argument, it would be a good idea (whether or not it is a politically feasible one) to appoint a historian, economist, doctor, accountant, soldier, or some other nonlawyer professional to the Court. In a weaker form of the argument, I also suggest that at a minimum, we should appoint more dual-competent Justices—lawyers who also have a degree or some other real expertise in another body of knowledge or skill...

It seems improbable that the theoretical and doctrinal framework of criminal procedure, developed mostly through a binary model of the individual and the state, would fit without modification in the tripartite model of the state, the firm, and the individual that characterizes the investigation and sanctioning of criminal conduct within legal entities. This intuition—which has been underexplored in spite of heated public debate about the state's practices in this area—proves correct. I develop some components of a framework for understanding procedure for individual cases of criminal wrongdoing within firms and generating insights to guide reform. The process of pursuing individual cases within firms (as opposed to firm cases against firms) is distinctive for at least three reasons: in terms of causation and incentives, the presence of an organization materially alters the incidence of individual misconduct ex ante and the efficiency and efficacy of investigating and prosecuting that conduct ex post; the nature of the applicable substantive criminal violations (white collar crimes) causes such cases to ripen into criminal cases more slowly than those outside business firms; and lawyers have multiple roles in such cases not only ex post but also ex ante. I evaluate two current practices in light of these structural differences: state use of the fruits of employer coercion of employees' waivers of the right to silence; and state negotiation with firms over the scope of firms' indemnification of their agents for litigation costs. I conclude that some reforms of current practices in these areas would be beneficial but that calls for abolition of those practices are misguided.

Emerging genetic and molecular technologies are revolutionizing our understanding of the relationship between genes and the environment. This Article develops an innovative framework for understanding the implications of the genomic revolution for the law of toxic torts. Professor Grodsky demonstrates how new technologies are poised to challenge longstanding distinctions between legally inconsequential "risk" and remediable "injury," and how the U.S. legal system will need to adapt to this emerging reality. If the law remains wedded to conventional notions of injury, it will ignore the fruits of a scientific revolution and thus may forego new remedial opportunities as yet unimagined. This is particularly significant given that twenty-first century medicine strives to "go beyond the limitations of biology" and detect, prevent, and treat disease at the molecular level. The transformative and rapidly evolving technologies of the genomic era will present herculean challenges for the legal system. But opportunities to fashion new remedies and create new efficiencies must not be overlooked in the process. Professor Grodsky recommends legal approaches to balance the goals of deterrence and legal restraint in an age of accelerating scientific change.

Precommitments are most essential when we feel most compelled to break them. Constitutional law, our collective pact of precommitments, is never more important than in periods of crisis. History suggests that when democracies are captured by fear, they react in predictably troubling ways, in particular by targeting the most vulnerable for selective sacrifices that the majority would not likely be willing to endure if the sacrifices were evenly distributed. The Constitution is predicated on the paradoxical understanding that democracy’s defects can be offset by compelling the majority to adhere to certain norms precisely when the democratic process would categorically reject them.

If it is to function as a restraint on the politics of fear, the Constitution must be interpreted not only with an eye toward its purpose and history, but with an understanding of the profound pressures that are likely to be at play when a polity in fear demands action. Otherwise, the forces that favor repression within the ordinary political channels will infect constitutional law as well. Holding the line during security crises is no simple matter. One need only think of the Supreme Court’s shameful ratification of the internment of 120,000 Americans and immigrants of Japanese descent during World War II, or its validation of prosecutions for anti-war speech during World War I. Political repression during times of crisis is nearly always deeply regretted as a mistake after the fact. If we are to learn from such mistakes, constitutional law is the place to locate and instantiate those lessons, in the hope that the country will exercise restraint the next time around...

The September 11, 2001 attacks forced the United States to reassess the possibility of a mass-casualty bioterror event. If terrorists could coordinate the destruction of four large commercial aircraft, two of the tallest skyscrapers in the country, and an entire section of the Pentagon in a single day, killing thousands of people, then they might eventually release a catastrophically lethal biological agent. Indeed, shortly after September 11, an unknown assailant sent anthrax spores to congressional offices and other targets, causing several fatalities and sowing widespread fear of being poisoned through the mail. Barely a year later, the outbreak of Severe Acute Respiratory Syndrome (SARS) and, after that, avian influenza, woke the public to a pandemic threat of a scale not seen since the million-death influenza strains that circulated in 1968-1969 and 1957-1958 (and perhaps even the 1918-1919 Spanish flu, which killed 40 million people worldwide)...

Imagine the following scenario. Smith invites Jones to live as a boarder in his spacious home upon the condition that Jones will pay his share, keep up his end of the chores, and abide by the rules of the household. Jones is thrilled to have found such a nice place to live and signs the lease without a moment’s hesitation. For a time, things go well; domestic affairs run smoothly. Then, one day, Jones steals the toaster oven from the kitchen and sells it for some extra cash. Smith wakes up the next morning hungry for a toasted English muffin only to find the appliance gone. He calls a house meeting where he confronts Jones, but Jones is evasive. Smith tells him that if he confesses to the theft, he will simply have to pay back the household for the toaster. Eventually, Jones confesses and buys a new toaster oven for the house. Time passes, and although things in the house are tense for a while after Jones’s indiscretion, he goes on to become a model housemate. When he gets married, his new wife moves into the house with Smith’s blessing. They have a baby girl, and Jones adds a nursery to the east wing of the house at his own expense...

The 2007 Stanford Law Review Symposium, "Global Constitutionalism," examines the interplay between the constitutional jurisprudence and principles of the United States and other nations. The articles presented in this Issue focus on global influences on U.S. jurisprudence, the creation of constitutions, and national security and constitutional protections. These themes were further explored at the live Symposium, co-hosted by the Stanford Constitutional Law Center, which was held at Stanford Law School on February 16 and 17, 2007. The four-panel event brought together many of the authors published in this Issue, as well as judges and scholars from around the world, including Professor and former Justice Dieter Grimm of Germany; Justice Asher Grunis of Israel; U.N. Ambassador Feisal Istrabadi of Iraq; Lord Lloyd of Berwick; Sir David Omand, former U.K. Security and Intelligence Coordinator; Justice Sam Rugege of Rwanda; Chief Judge Deanell Reece Tacha of the U.S. Court of Appeals for the Tenth Circuit; Justice Stefan Trechsel of the International Criminal Tribunal for the former Yugoslavia; and R. James Woolsey, former Director of the CIA.

Moderated by the law school's own Dean Larry Kramer, Helen Stacy, Kathleen Sullivan, and Allen Weiner, these panels explored the influence of international and foreign law on the United States and vice versa, the role of existing constitutional frameworks in the constitution-building process of emerging democracies, and the constitutional implications of counterterrorist initiatives in the United States and United Kingdom. Building on many of these concepts in his keynote address, Lord Goldsmith, the Attorney General of the United Kingdom, offered his perspective on safeguarding both the rule of law and national security..

Writing against the subjugation of women in 1869, John Stuart Mill wrote that "laws and institutions require to be adapted, not to good men, but to bad."1 You cannot justify an institution on the basis that good men will not abuse it. So too with times: laws and institutions need to be adapted not to good times, but to bad. It may be relatively easy to agree on what the laws should be in times of ease and peace—in the good times. When the times are bad, it is more difficult.

And we have had since 9/11 plenty of bad times.

How have we approached them? How have we adapted our laws and institutions to the bad times? And in doing so, what are the constitutional and international norms and standards we have drawn on?

As globalization runs its course, the domestic world is becoming full of international law. One of the mechanisms by which international law penetrates domestic law is largely unproblematic: our own political actors—Congress and the President through statutes, or the Senate and President through treaties— can incorporate international law into the domestic legal order. But international law now may enter into the domestic sphere in more controversial ways. First, some Supreme Court Justices have suggested that the Court should use international law as a source for construing the U.S. Constitution, and the Court itself has begun to use this interpretative strategy to a limited degree. Such constructions could lead to the invalidation of domestic laws. Second, advocates of customary international law argue for its direct incorporation into domestic law in order to constrain federal and state governments. Finally, others suggest that important domestic statutes be construed in light of customary international law, even if such interpretations prevent the President and his subordinates from exercising otherwise lawful discretionary authority.

We use the term "raw international law" to denote this latter kind of international law, which has not been endorsed by the domestic political process. Raw international law is distinguished from "domesticated international law," which our political branches have expressly made part of our law through the legislative process; as when the President and Senate enact treaties or when Congress by statute decides to incorporate norms of customary international law into American law.

The proper role of international law in domestic constitutional adjudication is a hot issue in legal circles and beyond, particularly in light of attacks on an "activist" judiciary, presently the fad among pundits, politicians, and pulpitarians. While the contest has been simmering for years in Congress, on the Court, and among academics, the top blew off the pot during the 2003 and 2004 Supreme Court terms "[w]hen [Justice] Kennedy, who's hardly a liberal, started citing these international sources . . . [and] the subject exploded in the broader political world."

It is no surprise to his fans or critics that Justice Scalia has been at the front of this contest. In written decisions, public speeches, and an unprecedented debate on the topic with Justice Breyer, Justice Scalia has drummed a regular beat against the use of contemporary foreign law materials when interpreting the Constitution. This Article provides a critical exegesis of his position and argues that, in a narrow set of constitutional cases, including those implicating the Eighth Amendment prohibition against cruel and unusual punishment, Justice Scalia, as an originalist, ought to refer to contemporary foreign sources...

In two of the most controversial cases of the past decade, the Supreme Court relied on foreign law to help determine the meaning of the United States Constitution. These foreign citations caused quite a stir. Several Justices have spoken extrajudicially about whether such reliance on foreign law is proper, and Justices Scalia and Breyer even went so far as to debate the issue outside of court. Congress has held hearings and considered resolutions and bills disapproving the practice. And scholars, of course, have let their views be known as well.

But in a recent issue of this Law Review, and despite all the ink already spilled, Eric Posner and Cass Sunstein found something new to say. With characteristic iconoclastic creativity, they offer a new argument for reliance on foreign law: the Condorcet Jury Theorem. Put simply, this Theorem demonstrates that, under certain circumstances, the majority view on a question is very likely to be correct. It follows, Posner and Sunstein argue, that courts may be wise to rely on the majority view of foreign governments when deciding questions of U.S. law...

Some people think that the practices of many courts in many countries, or in many relevant countries, offer helpful guidance to courts in other countries, when those courts are approaching hard or novel questions. In their view, the practices of many courts create a body of law in which other courts should be highly interested. The obvious question is: Why?

In The Law of Other States, we attempt to make progress on this question. Our focus was not principally on the use of foreign precedents in the constitutional rulings of the U.S. Supreme Court. We meant to take that controversial and specialized problem as part of a much more general one, which involves courts in one jurisdiction using the decisions of courts in other jurisdictions. Within the United States, state courts frequently refer to the decisions of other state courts, even when construing state constitutions. The high courts of many nations refer to the decisions of high courts of other nations. The problem is that it is not self-evident that the practices of courts AY should be taken as valuable or informative for court Z. Exploration of that problem might also illuminate the question of whether and when a legislator or administrator in one state should attend to the decisions of legislators or administrators in other states.

We Iraqis are a people plagued by massacres, random killing, bombs, and fiery statements—all targeting the democratic and constitutional processes. According to my appraisal, the reason behind this is that we are swimming against the current of a backward region, which still lives in the era of early centuries where people are governed not by democracy and constitutions but by single families, parties, or individuals. We experience the crisis of our political reality in the nonexistence of democratic constitutions and elected regimes.

It was a difficult and historic birth for this new Iraq Constitution. This infant has bravely faced violent, wicked threats to its existence. With its bright, lovely face, it has challenged death, overlooking the dark smoke, bombed cars, and dark-red blood encircling us everywhere. To make matters worse, the proposed burial of this innocent constitution (the birth of dawn) has been carrying a lovely title and beautiful cover: to face and resist the occupation. By committing this crime, the wicked desire of the people of the region collaborate to murder the newborn constitution. But success will disclose the corruption and awkwardness of their regimes.

British tradition and the American Constitution guarantee trial by jury for serious crime. But terrorism is not ordinary crime, and the presence of jurors may skew the manner in which terrorist trials unfold in at least three significant ways.

First, organized terrorist groups may deliberately threaten jury members so the accused escapes penalty. The more ingrained the terrorist organization in the fabric of society, the greater the degree of social control exerted under the ongoing threat of violence...

Though they often skirt the legal perimeter, the Bush Administration's national security policies are undoubtedly creative. The Administration's inventiveness demands a similar agility from the lawyers challenging these policies, particularly since the federal courts are understandably reluctant to interfere with the Executive in the midst of an armed conflict. While procedural arguments based on the separation of powers have met with some success in the courts, new legislation resulting from new Administration strategies requires a fresh approach. The Equal Protection Clause is a powerful and, thus far, unused arrow in the constitutional quiver. Its greatest utility is that, like the separation of powers claim, it can be styled as an avoidance argument.

It is too difficult and too soon for courts to decide whether all of the federal government's post-September 11, 2001 policies are substantively correct. Despite the waves of litigation and commentary charging that the Administration's actions are illegal to the core, neither the courts nor the public have reached agreement, in just over five years, on how to balance individual liberty and national security. The questions posed by terrorism are just too new and the dangers of asymmetric warfare (both in probability and extent of damage) too uncertain at this early date.

More than five years since the cataclysmic events of September 11, 2001, two dynamics have affected patterns of terrorism and counter-terrorism. The first was identified from the outset and relates to the growing emphasis upon anticipatory risk. The second is the increasing threat of "neighbor" terrorism.

The anticipatory risk of mass terrorism casualties or even the nightmare of the use of weapons of mass destruction conduces towards interventions which are preemptive or preventative. The threat of terrorism to life and liberty cannot be addressed simply by ex post facto rectification for the sake of justice. An inevitable consequence of this risk dynamic will be an intelligence-led approach, that is, governmental net-casting for information and for potential assailants on a wide and prescient scale. An intelligence-led approach might be said to reflect "a new and urgent emphasis upon the need for security, the containment of danger, the identification and management of any kind of risk." The broad sweep of such an approach recognizes the pervasive nature of terrorism whilst at the same time seeking to refine intelligence data so as to narrow the range of risks that security agencies should address at any one time. This allows the government to target its resources. The careful buildup and analysis of data also signals the government's assessment of the sophisticated, secretive, and dedicated nature of terrorist groups, features that distinguish them from "ordinary decent criminals."...

Immigration law concerns both first-order issues about the number and types of immigrants who should be admitted into a country and second-order design issues concerning the legal rules and institutions that are used to implement those first-order policy goals. The literature has focused on the first set of issues and largely neglected the second. In fact, many current controversies concern the design issues. This Article addresses the second-order dimension and argues that a central design choice all states face is whether to evaluate potential immigrants on the basis of pre-entry characteristics (the ex ante approach) or post-entry conduct (the ex post approach). The ex post system provides more information and thus results in more accurate screening than does the ex ante system, but it also may deter risk-averse applicants from making country-specific investments that benefit the host country. Focusing on this important tradeoff for states, as well as other costs and benefits of the two screening regimes, this Article evaluates America's reliance on an "illegal immigration system," the growth in ex post screening during the twentieth century, and America's unique focus on family-related immigration.

In immigration law as in other areas of legal scholarship, it is hard enough to find answers, but it is even harder and more important to pose the right questions and to understand the assumptions and frames of reference that define the field. For immigration law in particular, one of the basic choices is whether to adopt the traditional definition--as addressing whether noncitizens are allowed to enter and stay--or to embrace a broader range of questions about immigrants' rights, citizenship, and the integration of immigrants.

With the definition of the field up for grabs, the contributions of legal scholars are especially valuable if they not only search more deeply for answers to fundamental questions of law and policy, but also prompt us to consider why the questions matter in the first place. The Second-Order Structure of Immigration Law by Professors Adam Cox and Eric Posner does both, the first quite explicitly but the second only obliquely. This Essay fills out the picture painted partially by Second-Order Structure, with a particular effort to identify its unstated assumptions, to examine those assumptions, and to explain why they make a difference...

In light of the expansive interpretation of the "public use" requirement, the payment of "just compensation" remains the only meaningful limit on the government's eminent domain power and, correspondingly, the only safeguard of private property owners' rights against abusive takings. Yet, the current compensation regime is suboptimal. While both efficiency and fairness require paying full compensation for seizures by eminent domain, current law limits the compensation to market value. Despite the virtual consensus about the inadequacy of market compensation, courts adhere to it for a purely practical reason: there is no way to measure the true subjective value of property to its owner. Subjective value is neither observable nor verifiable to third parties and courts cannot rely upon owners' reports of the value they attach to their properties. To date, the challenge of screening truthful from exaggerated evaluation has proven insurmountable.

This Article solves the undercompensation conundrum. It offers a novel self-assessment mechanism that enables the payment of full compensation at subjective value when private property is taken by eminent domain. Under the proposed mechanism, property owners would get to set the price of the property designated for condemnation. The government could then either take the property at the designated price or abstain, leaving the property subject to two new proposed restrictions. First, for the life of the owner, the property could not be sold for less than the self-assessed price, adjusted on the basis of the local housing price index. Second, the self-assessed price--discounted to take account of the peculiarities of property tax assessments--would become the new benchmark for the owner's property tax liability.

This Article shows that under most conditions, these restrictions will induce honest reporting by owners while reducing the transaction costs created by the compensation process. The result is a dramatically more efficient law of eminent domain that is also far more respectful of private property rights.

In the contemporary debate over the allocation of war powers, the standard account assumes that prior congressional authorization for the use of force will produce unambiguous deliberative effects because it channels the war-making decision through multiple political actors with varying points of view. Contrary to the received wisdom, this experimental Article advances the empirically plausible but counterintuitive assumption that congressional authorization of the use of force might actually have a perverse effect. Thus, rather than create a drag effect that minimizes the impulse to rush into imprudent wars, congressional authorization might actually do the opposite: because such authorization allows the President to spread the potential political costs of military failure or stalemate to other elected officials, it will lead the President to select into more high-risk wars than he would otherwise choose if he were acting unilaterally. In other words, since congressional authorization acts as a political “insurance policy” that partially protects the President against the possible political fallout from failed military engagements, such authorization is more likely to make the President willing to engage in wars where the expected outcome is uncertain. Indeed, the moral hazard effect is likely to be acute because the political insurance benefits that the President receives are likely to far exceed any ex ante costs he incurs from seeking congressional authorization. More importantly, not only is the President likely to use congressional authorization as a hedge against the loss of political dominance when a war goes bad, he is also likely to use it to prevent the political opposition from exploiting the electoral vulnerabilities of members of Congress from his own party. Finally, because of the short-term electoral risks associated with voting against a presidential request to use force, members of Congress are likely to approve the President's war agenda, especially if the President requests such authorization shortly before a national election. As the political fallout from the ongoing Iraqi occupation mounts, this Article uses foreign policy debates in Congress and the executive branch regarding both the costs of the occupation and a possible withdrawal plan to test these theoretical hypotheses.

Patent lawyers, courts, and scholars have spent an enormous amount of time and energy over the last twenty-five years trying to determine the rationale and scope of the doctrine of equivalents, an exception to normal patent infringement rules that allows patent owners to extend the scope of patents beyond their literal bounds in certain circumstances. Judges and scholars in the late 1990s suggested that the doctrine of equivalents exception was swallowing the rule, complained that it "lacks a coherent vision" and labeled it the most controversial doctrine in all of patent law. Two of the three most important Supreme Court patent cases decided between 1981 and 2005 concerned the scope of a limitation on the doctrine of equivalents called prosecution history estoppel. The Festo case in particular whipped the patent bar into an unprecedented frenzy, attracting more amicus briefs than any other Supreme Court patent case up to that date.

The Festo case also created a perfect natural test for the importance of patent rules on case outcomes. Before the Federal Circuit's en banc decision in Festo, courts often took a relatively permissive (that is, patent-friendly) stance towards prosecution history estoppel by allowing patent owners to capture ground in court they had unnecessarily given up in patent prosecution. In 2000, the Federal Circuit en banc reversed course, creating an absolute bar against applying the doctrine of equivalents to an element in a patent claim where the patentee had narrowed that element in the course of obtaining the patent. Two years later, the Supreme Court reversed course again, taking a middle ground by creating a presumption that such narrowing of a patent in the PTO creates estoppel, but allowing that presumption to be rebutted in various circumstances. To many patent lawyers, the Supreme Court saved patent law from catastrophe by reversing the absolute bar.

Justice Clarence Thomas insists upon "a 'moral and constitutional equivalence' between laws designed to subjugate a race and those that distribute benefits on the basis of race in order to foster some current notion of equality." This asserted congruence between Jim Crow laws and affirmative action seems intellectually indefensible--but it is now a constitutional commonplace, as it underlies the contemporary rise of an anticlassification understanding of the Equal Protection Clause that accords race-conscious remedies and racial subjugation the same level of legal hostility. This Article lays out the intellectual history of "reactionary colorblindness," meaning the current form of race blindness that principally targets affirmative action. Measuring debates among legal elites against a background of evolving racial ideas, this Article traces the use of colorblindness to attack Jim Crow in the years before Brown v. Board of Education, and as a tactic to forestall integration in that decision's immediate wake. It then locates the proximate origins of contemporary colorblindness in the effort by neoconservatives beginning in the 1960s to respond to an emerging structural understanding of racism by positing instead an ethnic reconceptualization of race. The ethnic analysis replaced the notion of dominant and subordinate races with a narrative of culturally defined groups in pluralistic competition, where culture rather than systemic racial advantaging or disadvantaging explained disparate group success. This Article demonstrates the foundational role ethnicity played in Justice Lewis Powell's 1978 Bakke opinion, and also shows how his analysis subsequently served as the cornerstone for contemporary colorblind reasoning, evident for instance in Richmond v. Croson. Finally, this Article argues that the liberal legal defenders of affirmative action, by remaining wedded to mid-century racial orthodoxies, not only failed in the 1970s to respond effectively to the emergence of reactionary colorblindness but contributed to its intellectual legitimacy.

In Latin, the phrase res ipsa loquitur means “the thing speaks for itself.” In the law, few concepts have created more confusion among scholars and practitioners than the evidentiary doctrine of res ipsa loquitur. Commentators have attempted to characterize the phrase alternatively as a rule, principle, doctrine, maxim, and for one particularly frustrated scholar, a myth. Likewise, res ipsa loquitur has resisted all attempts by legal authorities to delineate its scope. In the words of another eminent, but exasperated, scholar, res ipsa loquitur “is used in different senses[;] . . . it means inference, it means presumption, it means no one thing--in short it means nothing.” Nonetheless, the maxim has appeared in thousands of cases since its first articulation in the mid-nineteenth century and shows no signs of leaving the legal lexicon. The most widely accepted interpretations of res ipsa loquitur include: (1) that it creates a permissible inference of negligence for a jury in situations where a plaintiff can only show that an injurious event occurred; (2) that it presents a rebuttable presumption requiring a jury to find for a plaintiff in the absence of exculpatory evidence from the defendant; or (3) that it forces an affirmative shift in the burden of proof from plaintiff to defendant...

This Note seeks to address a systemic and difficult issue in the field of antitrust, namely the problem of proving concerted action for the purpose of price-fixing claims in oligopolistic markets. While antitrust law has been markedly successful in eliminating express cartels, competition policy has been equally noteworthy for its failure to effectively address instances of parallel pricing that may have an economically analogous effect to explicit price-fixing. Though the law has long viewed this shortcoming as an inevitable consequence of market structure, this Note will articulate both a different conclusion and a novel solution.

An oligopoly is a market in which the level of concentration causes firms residing therein to operate strategically. In other words, an oligopolist must factor the expected reaction of its competitors into its first order condition for profit maximization. A firm operating in a monopolized market, or one subject to perfect competition, simply equates marginal revenue with marginal cost in setting price. Doing so in an oligopolized market is not profit-maximizing, however, as the profitability of a given price depends on the price being charged by other firms in the market. This is so because, in selling its goods, a firm will have a unilateral impact on the residual demand facing the other firms in the market...

Originalists' emphasis on William Blackstone's Commentaries tends to suggest that the common law of the founding era consisted of a set of determinate rules that can be mined for the purposes of constitutional interpretation. This Article argues instead that disparate strands of the common law, some emanating from the colonies and others from England, some more archaic and others more innovative, coexisted at the time of the Founding. Furthermore, jurists and politicians of the founding generation were not unaware that the common law constituted a disunified field; indeed, the jurisprudence of the common law suggested a conception of its identity as much more flexible and susceptible to change than originalists posit.

The alternative that this Article proposes--"common law originalism"--treats the strands of eighteenth-century common law not as providing determinate answers that fix the meaning of particular constitutional clauses but instead as supplying the terms of a debate about certain concepts, framing questions for judges but refusing to settle them definitively. It likewise suggests that the interpretation of common law phrases should be responsive to certain alterations in external conditions, rather than static and inflexible. Situated between living constitutionalism and originalism as currently practiced, common law originalism attempts to square fidelity to the founding era with fidelity to its common law jurisprudence--a jurisprudence that retained continuity yet emphasized flexibility and was inclusive enough to hold disparate legal conceptions in its embrace.

This Article explores the relationship of the U.S. Constitution to the costs of government decision making. Constitutional law clearly can escalate these costs, as when the Due Process Clauses are read to mandate additional procedure not otherwise favored by decisionmakers. This much is understood. But the Constitution and its doctrine sometimes put downward pressure on decision costs. We lack a systematic investigation of when this is, and should be, true. The Article makes three general claims: (1) The entire Constitution tends to reduce decision costs insofar as it is a focal point for confining disputes, and empirical work suggests that adherence to the document might not accomplish much else. (2) However, individual components of the text and its doctrine often increase rather than decrease the costs of government decision making. (3) This situation is not ideal. An intelligently crafted federal constitutional law of "undue process" seems just as attractive as "due process," and some courts have experimented with the former. Neither process theory nor implementation problems separate the two concepts, as long as courts are not tasked with optimizing government process. Yet the desirability of a generic undue process claim is tempered by the very conventions that allow the Constitution as a whole to reduce decision costs. Undue process claims therefore ought to be exceptional, even if occasionally potent, elements of federal constitutional practice. The most plausible occasions for successful objections are identified.

Policymakers fight over bureaucratic structure because it helps shape the legal interpretations and regulatory decisions of agencies through which modern governments operate. In this Article, we update positive political theories of bureaucratic structure to encompass two new issues with important implications for lawyers and political scientists: the significance of legislative responses to a crisis and the uncertainty surrounding major bureaucratic reorganizations. The resulting perspective affords a better understanding of how agencies interpret their legal mandates and deploy their administrative discretion.

We apply the theory to the creation of the Department of Homeland Security. Two principal questions surrounding this creation are (1) why the President changed from opposing the creation of a new department to supporting it and (2) why his plan for such a department was far beyond the scope of any other existing proposal. We argue that the President changed his mind in part because he did not want to be on the losing side of a major legislative battle. But more significantly, the President supported the massive new Department in part to further domestic policy priorities unrelated to homeland security. By moving a large set of agencies within the Department and instilling them with new homeland security responsibilities without additional budgets, the President forced these agencies to move resources out of their legacy mandates. Perversely, these goals appear to have been accomplished at the expense of homeland security.

Finally, we briefly discuss more general implications of our perspective: first, previous reorganizations (such as FDR's creation of a Federal Security Agency and Carter's creation of an Energy Department) also seem to reflect politicians' efforts to enhance their control of administrative functions by making bureaucratic changes, and particularly by mixing domestic and national security functions; and, second, our analysis raises questions about some of the most often asserted justifications for judicial deference to agency legal interpretations.

In 1978, Justice Powell famously found that racial diversity can justify race-conscious admissions systems. However, Justice Powell wrote alone, leaving the diversity rationale in a state of limbo for nearly three decades. In 2003, a slim majority of the Supreme Court agreed with Justice Powell, finding that an educational institution had a compelling interest in a diverse student body.

To buttress the idea that "educational benefits . . . flow from an ethnically diverse student body,"Justice Powell included a quote from a former Princeton graduate observing: "People do not learn very much when they are surrounded only by the likes of themselves." With this anecdotal support, the diversity rationale gained recognition in the Supreme Court...

The passage of the 2005 amendments to the Bankruptcy Code represents the turning of a page in the long history of personal bankruptcy in the United States. At the very moment that European countries are liberalizing their treatment of individual debtors, the U.S. Congress has embraced changes intended to make bankruptcy difficult or impossible for many financially troubled Americans. The primary justification for this wholesale revision of the accessibility of the consumer bankruptcy system has been the repeated claim that the extraordinary increase in bankruptcy filings is the consequence of declining stigma. In effect, the argument is that a growing moral slackness causes people who can repay their debts to seek the too-easy protection of bankruptcy. This Article reports the third of three comparable empirical observations of individual bankruptcy spread over twenty years. It establishes a baseline against which the effects of the new amendments can be examined. The data we present are not consistent with the claim that declining bankruptcy stigma has fueled an increase in bankruptcy filings. Instead, the data are far more consistent with the hypothesis that increased filings result from increased financial distress, and they hint that, despite loud claims to the contrary, the stigma of bankruptcy may actually be increasing...

A quarter century ago, Margaret Jane Radin interrupted the hegemonic law and economics discourse on property with a theory of personhood. And the New Jersey Supreme Court declared in the historic case of State v. Shack that "property rights serve human values." From these our modern "social relations" theory of property was born. Now, the pundits declare that "intellectual property has come of age." But is intellectual property philosophically and theoretically mature enough to face the world? Unlike its cousins property law and the First Amendment, which bear the weight of values such as autonomy, culture, equality, and democracy, in the United States intellectual property is understood almost exclusively as being about incentives. To put it bluntly, there are no "giant-sized" intellectual property values. But there should be. Intellectual property has grown, perhaps exponentially, but its march into all corners of our lives and to the most destitute corners of the world has paradoxically exposed the fragility of its economic foundations while amplifying its social and cultural effects. Indeed, with full compliance to the TRIPS Agreement now required in all but the world's very least developed countries, bringing with it patents in everything from seeds to drugs, intellectual property law becomes literally an issue of life or death. Despite these real-world changes, intellectual property scholars increasingly explain their field through the lens of economics alone, evidence of Amartya Sen's observation that "[t]heories have lives of their own, quite defiantly of the phenomenal world that can be actually observed."

The theory is behind the practice. On the ground, underground, and in the ether, intellectual property is spurring what the New York Times says "could be the first new social movement of the century." I show that in case after case, from MGM v. Grokster, to new licenses from the Creative Commons for developing nations, to the rise of Internet auteurs of fan fiction, mash-ups, and machinima, to efforts to deliver medicines to the world's poor, to demands for "Geographical Indications" for sarees and other crafts of the developing world, and to the nascent global movement for "Access to Knowledge," traditional economic analysis fails to capture fully the struggles at the heart of local and global intellectual property law conflicts. This Article builds from these examples to lay a foundation for a cultural analysis of intellectual property. I offer "IP3" as a metonym. The twentieth century closed with the rise of identity politics, the Internet Protocol, and intellectual property rights. I suggest that the convergence of these "IPs" begins to explain the growth of intellectual property rights where traditional justifications for intellectual property do not. IP3 reveals intellectual property's social effects and this law as a tool for crafting cultural relations. Call it the ripping, mixing, and burning of law.

Of late, several scholars have contended that the political question doctrine is heading toward its demise. Paraphrasing Mark Twain, one might say that rumors of the doctrine's death are much exaggerated. Notwithstanding what these scholars have viewed as the Supreme Court's proclivity for "control[ling] all things constitutional," three members of the Court recently suggested that the political question doctrine remains very much alive and well. These Justices may have breathed new life into the doctrine, particularly as they argued that it shields from judicial review certain tools available to the political branches in waging this country's ongoing war on terrorism.

The suggestion came in Hamdi v. Rumsfeld, a case in which the Court addressed whether the government may detain an American citizen (possibly indefinitely) outside of the judicial process, as the government claimed the right to do. The Suspension Clause of the Constitution lurked prominently in the background of Hamdi; indeed, Justice Scalia, joined by Justice Stevens, opined in dissent that the Clause rendered Hamdi's detention unlawful and dictated his immediate release. Justice Scalia further suggested that if Congress had suspended the writ of habeas corpus following the September 11 attacks, the judiciary could not have reviewed the constitutionality of such an act...

International terrorism carried out by nonstate actors and the spread of weapons of mass destruction (WMD) to dangerous states have emerged in recent years as the most significant security threats to the international order. Although the nature of the threats has changed dramatically, the legal regime governing the international use of force has not undergone a comparable transformation. Many commentators and strategists see a growing disconnect between states' security needs and the international law security architecture. Contending that the international law rules and international institutions established by the U.N. Charter are ill-suited to meeting contemporary security threats, these commentators and policymakers advance new doctrines to expand the entitlement of states to use force unilaterally in self-defense.

This Article rejects this perspective and the associated prescriptions for new legal rules to regulate the international use of force. It demonstrates that the U.N. Charter created a two-tiered system of rules and standards to govern the use of force. With respect to unilateral uses of force by states, the Charter employs a bright-line rule: to guard against erroneous and bad-faith invocations of the right of self-defense, force may be used unilaterally only in the event of an armed attack. The Charter employs a more flexible standards-based approach, subject to the procedural safeguards of collective decision-making by the Security Council, to authorize force to confront threats to international peace and security.

The Article challenges the widely held assumption that the competing interests of the Permanent Members will inevitably produce gridlock in the Security Council with respect to collective action against the new security threats. To the contrary, there is an underlying affinity of interests among the Permanent Members with respect to these threats. The Permanent Members all face major international terrorist threats, and they all seek to preserve their near-monopoly over WMD. Accordingly, the Permanent Members share an interest in confronting international terrorism and preventing the proliferation of weapons of mass destruction. Because these contemporary security threats-- unlike the rivalries of the Cold War era--do not implicate competing interests of the Permanent Members, the Security Council's security architecture is actually better suited to addressing today's threats than it was to countering the state-versus-state conflicts for which it was designed. The recent behavior of the Permanent Members reflects their increasing cooperation on the basis of this affinity of interests.

The Article further argues that the use of force pursuant to the Charter's collective security provisions carries with it greater legitimacy, greater prospect for success, and less danger of destabilizing error or abuse than would force exercised pursuant to doctrines that expand the right of states to use force unilaterally. The Article also identifies pragmatic policy and diplomatic steps the Permanent Members should take to build upon their underlying affinity of interests regarding international terrorism and WMD proliferation so as to strengthen the capacity of the collective security architecture to confront these threats.

In November 2004, California voters approved Proposition 71, establishing a state constitutional right to conduct stem cell research. By guaranteeing scientists a right to conduct their research unfettered by government intervention, the state intends to attract an army of researchers who will ultimately boost the state's economy with lucrative stem cell applications. For scientists, the opportunity is especially appealing in light of the $3 billion in government funding that California has earmarked for stem cell research over the next ten years. Indeed, other states have scrambled to enact similar measures in the hopes of preventing an exodus of scientists to more research-friendly jurisdictions.

But no state has the power to provide a safe harbor for scientific research if Congress decides to make such research illegal. Rather, the researcher would need to attack the federal ban with an argument grounded in the U.S. Constitution and rely on judicial intervention to overrule Congress. Although due process and equal protection arguments for a scientific right to research have been suggested, the constitutional basis that has received the most attention is the Free Speech Clause of the First Amendment. Many commentators have painted the First Amendment as an obvious protection for cloning research, stem cell research, and even bioweapons research. In contrast, in its 1997 report, the National Bioethics Advisory Commission claimed that "society recognizes that the freedom of scientific inquiry is not an absolute right and scientists are expected to conduct their research according to widely held ethical principles." At least one scholar has implied that there is not even a threshold First Amendment problem with restrictions on scientific research. Unfortunately, however, no court has squarely addressed the issue...

In 1981, Lawrence Friedman and Robert Percival published The Roots of Justice, their study of the criminal justice system of Alameda County between 1870 and 1910. Working in the sooty port town of Oakland, they unearthed records of prisons, press, courts, and cops. Then they reconstructed the entire criminal justice system, from curbside police discipline to flash-lit courtroom morality plays.

In honor of the book's twenty-fifth anniversary, this essay follows a short distance in its trail. It reopens the murder trial of Hugh Cull, mentioned by Friedman and Percival in a brief footnote. Cull killed his wife in front of their seven-year-old daughter, but won acquittal when the trial judge deemed the girl incompetent to testify.

The case turns out to be much more than another acquittal staked on a legal technicality. Unraveling its elaborate plot requires close attention to Lawrence Friedman's writings--not only Roots of Justice, but also his later studies of marriage and divorce in this era.

Each year the federal individual income tax code provides over $500 billion worth of incentives intended to encourage socially beneficial activities, such as charitable contributions, homeownership, and education. This is an enormous investment, exceeding our budget for national defense and amounting to about 4% of Gross Domestic Product (GDP). The design of these tax incentives is an immensely important policy matter. Yet despite their efficiency rationale, little attention has been paid to the question of what economic efficiency implies about the form these tax incentives should take.

Currently the vast majority of tax incentives operate through deductions or exclusions, which link the size of the tax preference to a household's marginal tax bracket. Higher-income taxpayers, who are in higher marginal tax brackets, thus receive larger incentives than lower-income taxpayers. This Article argues that providing a larger incentive to higher-income households is economically inefficient unless policymakers have specific knowledge that such households are more responsive to the incentive or that their engaging in the behavior generates larger social benefits. Absent such empirical evidence, all households should face the same set of incentives...

In the course of damning the market giant Standard Oil, the Supreme Court declared that the purpose of the Sherman Antitrust Act is to prevent "monopoly and the acts which produce the same result as monopoly." The Constitution's Supremacy Clause, in turn, requires preemption--that is, non-enforcement--of state laws that conflict with a federal statute. Put together, these propositions suggest that state laws which create monopolies should be prime candidates for preemption via the Sherman Act. But despite the syllogistic logic bearing down on them, monopoly-creating state laws have easily weathered most federal antitrust challenges, even when the state does not regulate the price the monopolist charges. The reason is that the Supreme Court's antitrust decisions on state economic regulation have consistently confused two distinct questions: whether market conduct encouraged by state law violates the Sherman Act, and whether state law conflicts with the Sherman Act and thus is preempted. This confusion explains other problems in the Court's antitrust jurisprudence, including the Court's inability to make sense of antitrust claims against municipalities acting as lawmakers rather than market participants. In this Article, I describe the sources and consequences of the Court's confusion, and then I propose how to resolve it.

The question of whether courts should consult the laws of "other states" has produced intense controversy. But in some ways, this practice is entirely routine; within the United States, state courts regularly consult the decisions of other state courts in deciding on the common law, the interpretation of statutory law, and even the meaning of state constitutions. A formal argument in defense of such consultation stems from the Condorcet Jury Theorem, which says that under certain conditions, a widespread belief, accepted by a number of independent actors, is highly likely to be correct. It follows that if a large majority of states make a certain decision based on a certain shared belief, and the states are well motivated, there is good reason to believe that the decision is correct. For the Jury Theorem to apply, however, three conditions must be met: states must be making judgments based on private information; states must be relevantly similar; and states must be making decisions independently, rather than mimicking one another. An understanding of these conditions offers qualified support for the domestic practice of referring to the laws of other states, while also raising some questions about the Supreme Court's reference to the laws of other nations. It is possible, however, to set out the ingredients of an approach that high courts might follow, at least if we make certain assumptions about the legitimate sources of interpretation. Existing practice, at the domestic and international levels, suggests that many courts are now following an implicit Condorcetian logic.

The political offense exception--the principle that an individual cannot be extradited to face criminal prosecution for a "political" act--has long been a staple of extradition law. Its existence is a matter of international consensus; almost every modern treaty contains boilerplate language exempting such offenses from its provisions. That consensus abruptly ends, however, at the task of line-drawing. What is or is not "political" conduct has been the subject of controversy since the first exception appeared over 180 years ago.

The changing global landscape of the past several decades has prompted a significant reexamination of the exception's scope. Increasing attention has been drawn to acts of terrorism, internal conflict, and totalitarian oppression--matters previously shelved by the international community during the pendency of the Cold War. The same era has also witnessed diplomatic cooperation and the development of supranational institutions to respond to these atrocities. An increasing number of countries now display a refreshing intolerance for the exploitation of their immigration and asylum procedures by former political leaders, military officials, revolutionaries, and terrorists to avoid domestic prosecution...