Volume 60

Clients demand bad legal advice when legal advice can favorably influence third-party conduct or attitudes even when it is wrong. Lawyers supply bad legal advice most readily when they are substantially immunized from accountability to the people it is intended to influence. Both demand and supply conditions for a flourishing market are in place in several quarters of the legal system. The resulting practices, however, are in tension with basic professional and academic values. I demonstrate these tensions through critiques of the work of academic professional responsibility consultants in such matters as Enron, Lincoln Savings & Loan, and a heretofore undiscussed aggregate litigation settlement. I also suggest reforms to reduce the incentives and pressures for bad advice that now prevail.

William H. Simon is a highly regarded law professor and legal theorist whose principal subjects include the legal profession. Much of his scholarship challenges conventional professional norms and practices. His most recent article targets lawyers, especially law professors, who advise clients and serve as expert witnesses. His basic premise is that some clients do not seek lawyers' accurate, honest views but want their lawyers to ratify their proposed or past conduct regardless of its lawfulness, and that law professors and other lawyers sometimes satisfy this market by giving “bad legal advice.” To discourage lawyers from doing so, and to minimize the impact of lawyers' bad advice on third parties, Simon argues that lawyers should follow more rigorous standards of analysis, transparency, and accountability both when they give advice or expert testimony and when clients later use their legal work to influence others. He argues that legal academics practicing law should meet the most rigorous standards of all--including standards of transparency associated with the academy, not the legal profession*--and, further, that legal academics should regulate each other by “shaming” colleagues who practice badly. In the abstract and at a level of generality, Simon's theory is appealing because it promises to hold lawyers to a higher standard of care for the public good. The *1607 question, however, is how Simon's proposal at a level of particularity would play out in actual law practice. This Reply argues that Simon overstates the problem, understates the significance of existing disincentives to giving erroneous advice, and offers a solution that is difficult to implement and would do more harm than good.

I fear that the diffuse and ad hominem tendencies of Bruce Green's reply will distract attention from the core issues I sought to discuss.First, I argued that issues of professional and academic integrity and accountability are raised when lawyers give advice with certain third-party effects under conditions of partial or complete secrecy. I proposed a variety of soft norms, including especially a presumptive duty of publicity.Second, I criticized novel aggregate litigation arrangements applied by Leeds, Morelli & Brown (LM&B) in a series of campaigns involving many hundreds of clients, and I criticized the opinions of academic experts, including Green, who approved them.Although I believe the discussion of LM&B is interesting in itself as an account of a novel litigation structure, I intended it to amplify my discussion of quasi-third-party opinion practice in two ways. First, it shows the significant role that professional, and especially academic, experts can play in legitimating transactions both before and after the fact. Second, if the reader agrees with my argument that these opinions were egregiously “wrong” (that is, either procedurally sloppy or substantively incorrect), then they provide anecdotal evidence that existing norms and practices are not adequate to safeguard the relevant public interests.I am grateful for the portion of Green's response that engages these issues, and I reply to it here, looking at his discussion of LM&B first, and then his disagreement with my proposal for more transparency.

Few commentators, outside of the practicing bar and the judiciary, find much to recommend in the modern system of professional regulation of lawyers. While the topic (to date) has attracted only a small share of scholarly attention, justifications for the traditional exclusive control exercised by the bar and judiciary over the practice of law have drawn withering critiques from several directions for decades. Bill Simon called for the abandonment of legal professionalism thirty years ago and again in the wake of the savings and loan crisis of the late 1980s and the Enron debacle of 2001, emphasizing the failure of self-regulation and the absence of justification for corporate attorney-client privilege in particular...

There was a moment around 1990 when it all seemed possible. Finally, there was a way for black lawyers with ambition, skill, and determination to escape the frustrating limitations that seemed destined to block their progress at large law firms which, although finally willing to hire them, seemed unwilling or unable to treat them as full fledged participants. That way was to build “large” corporate law firms of their own that would compete directly with established firms for clients and talent...

During their “golden era” in the 1950s and 1960s, large American law firms were segregated along religious and cultural lines between WASP and Jewish law firms. The rise and success of large law firms with distinctive religious and cultural identities is surprising because the large firm was purportedly a-religious and meritocratic...

In 1991, Galanter and Palay published Tournament of Lawyers: The Transformation of the Big Law Firm, which documented the regular and relentless growth of large U.S. law firms. The book advanced several structural and historical factors to explain these patterns, centering on the adoption of the promotion-to-partnership tournament. Systemic changes in the marketplace for corporate legal services in the intervening years suggest the need for an updated account of the modern large law firm.Using Tournament of Lawyers as a starting point, we propose to fill this void in the literature. Marching through a wide array of empirical evidence covering the last twenty to thirty years, our findings corroborate some of the core theoretical insights of Tournament of Lawyers. For example, the continuous upward growth of the partnership based on the tournament is clearly evidenced by a “smooth” upward trajectory in the partnership ranks while associate hiring hews more closely to the underlying business cycle. On the other hand, the widening ranks of nonequity partnership and permanent “off track” attorneys suggest the emergence of a more complex and elongated tournament structure that applies to both partners and associates. Further, the sheer size and geographic dispersion of present-day large law firms makes it more difficult to create and sustain firm-wide cultural norms, such as collegiality, cooperation, and risk sharing, that may have moderated intrafirm competition under the original “classic” tournament.Under this new model, which we dub “elastic tournament,” the equity core is reserved primarily for partners who control access to key clients. This structure reduces cross-subsidies between lawyers with differential value to the firm, thus reducing the potential for large-scale lateral defections. In this highly atomized environment, individual lawyers within large firms are likely to find it harder to adhere to professional and ethics principles that are at odds with a client's objectives. As a result, zealous advocacy thus becomes of the touchstone of ethical lawyering. Further, notwithstanding its formidable size, the “firm” itself has remarkably little autonomy to pursue noneconomic objectives, such as racial and gender diversity or the training and mentoring of the next generation of lawyers. Although the partnership shares the benefits of successful recruitment, the lack of credible risk sharing reduces the willingness of individual lawyers to invest in firm-wide initiatives that do not simultaneously optimize their own practice. Except in a handful of exceptional cases, we fear that the mediating influence of firm culture is likely to be eroded by the sheer size of the modern large firm. Similar to any commodity market, this model is fundamentally “stable” in the economic sense. Yet, it raises several philosophical and practical issues regarding lawyer independence and the long-term viability of professional self-regulation.

Warrantless surveillance, extraordinary rendition, indefinite detention, torture. These are the most serious charges of extralegal conduct by the present administration--conduct which, in one form or another, Attorneys General Ashcroft and Gonzales and their staffs have attempted to give the imprimatur of law. The charges are serious indeed. To them, lesser charges could be added (cronyism, distortion of enforcement priorities, abuse of prosecutorial discretion). What are we to make of the fact that the nation's highest legal officers, not to mention a good number of their subordinates, have been drawn so willingly, it would appear, into a position of complicity with, if not outright endorsement of, extralegal conduct at odds with our most fundamental constitutional and democratic commitments?

In January 2007, Charles “Cully” Stimson gave an early morning interview on a local talk radio station in Washington, D.C. Stimson was Deputy Assistant Secretary of Defense for Detainee Affairs, and his subject was Guantánamo. After a few innocuous questions and answers, and a dig at Amnesty International, Stimson abruptly changed the subject. “I think the news story that you're really going to start seeing in the next couple of weeks is this.” He continued...

The contemporary public interest legal movement is not far from that description, which Martin Luther King, Jr. once invoked to characterize the civil rights campaign of the 1960s. Most of this nation's leading public interest law organizations are now in midlife; they have grown substantially in size and influence since their formation beginning in the late 1960s. Groups that started with a few idealists, typewriters, and a Xerox machine are now multimillion dollar institutions at the forefront of social reform. Yet as the capacities of public interest legal organizations have increased, so, too, have many of the problems they seek to address. The growing conservatism of the public and the courts, and the increasing competition among reform-oriented groups, have also added new challenges. The movement has made enormous progress, but its aspirations far exceed its achievements...

In 1991, Marc Galanter and Thomas Palay declared a “crisis” in the legal world. Their landmark book, Tournament of Lawyers, described how structural changes within the profession forced America's largest law firms to abandon professional norms in pursuit of ever growing profits. Galanter and Palay's arguments confirmed fears that the legal “golden age” of the 1960s had given way to a model based on unchecked competition and growth...

In recent years, the proper role of comparative law in the jurisprudence of American courts has become a hotly debated and controversial topic. The question was brought to the forefront of the legal community's attention following a number of United States Supreme Court decisions, perhaps most notably in Atkins v. Virginia and Roper v. Simmons, rulings that addressed the constitutionality of administering the death penalty to mentally retarded and juvenile defendants. In both decisions, the Court was divided on whether to regard foreign laws and practices as indicative of an evolving standard of decency when determining whether a punishment should be considered “cruel and unusual” under the Eighth Amendment of the United States Constitution.

Corporate law and scholarship generally assume that professional managers control public corporations, while shareholders play only a weak and passive role. As a result, corporate officers and directors are understood to be subject to extensive fiduciary duties, while shareholders traditionally have been thought to have far more limited obligations. Outside the contexts of controlling shareholders and closely held firms, many experts argue shareholders have no duties at all.The most important trend in corporate governance today, however, is the move toward “shareholder democracy.” Changes in financial markets, in business practice, and in corporate law have given minority shareholders in public companies greater power than they have ever enjoyed before. Activist investors, especially rapidly growing hedge funds, are using this new power to pressure managers into pursuing corporate transactions ranging from share repurchases, to special dividends, to the sale of assets or even the entire firm. In many cases these transactions uniquely benefit the activist while failing to benefit, or even harming, the firm and other shareholders.This Article argues that greater shareholder power should be coupled with greater shareholder responsibility. In particular, it argues that the rules of fiduciary duty traditionally applied to officers and directors and, more rarely, to controlling shareholders should be applied to activist minority investors as well. This proposal may seem a radical expansion of fiduciary doctrine. Nonetheless, the foundations of an expanded shareholder duty have been laid in existing case law. Moreover, there is every reason to believe that newly empowered activist shareholders are vulnerable to the same forces of greed and self-interest widely understood to face corporate officers and directors. Corporate law can, and should, adapt to this reality.

Legal principles that are almost right are often more mischievous than those that are completely wrong. What is transparently wrong is interpreted narrowly (or ignored altogether) and is likely to be repealed. An almost-right principle invites sloppy thinking, vague generalities, and a general distortion of the otherwise sound ideas that lie close by. An example of an almost-right principle that has distorted much of the thinking about corporate law in recent decades is the oft-repeated maxim that directors of a corporation owe a fiduciary duty to the shareholders...

Keynes taught years ago that international cash flows are always political. Western response to the enormous increase in the number and the assets of sovereign wealth funds (SWFs), and other government-directed investment vehicles that often get lumped together under the SWF label, proves Keynes right. To their most severe critics, SWFs are a threat to the sovereignty of the nations in whose corporations they invest. The heat of the metaphors matches the volume of the complaints. The nations whose corporations are targets of investments are said to be threatened with becoming “sharecropper” states if ownership of industry moves to foreign-government absentee holders. More tempered critics fear that SWFs will make decisions for political, not economic reasons. Calls for both domestic and international regulation of sovereign wealth funds' investments are now a daily occurrence. In this Article we frame a minimalist response to concerns over SWFs...

This Article is about how federal white collar crime law is put to the test of defining corruption. We focus on the concept of “corruption” while acknowledging that it is hopelessly vague and that the legal system, so long as it identifies more specific goals for criminal or civil legislation, bears no intellectual responsibility to define “corruption” or to resolve larger philosophical debates about its meaning. Nevertheless, the effort at definition finds motivation in several sources, such as deference to the normative concerns of juries or the public generally, sincere respect for the normative standards imputed to legislatures, and concern for coherence in or restraint on prosecutorial and jury discretion in the absence of clear legislative criteria. Whatever the key motivation, white collar crime prosecutions frequently turn on difficult value-laden judgments about types and effects of conduct for which the term “corruption” is, in the spheres of laws and morals, our dominant name...

When it comes to compliance with the Foreign Corrupt Practices Act (FCPA), multinational companies that adopt a “don't ask, don't tell” policy may come to regret their hands-off approach. Compliance with the FCPA's laws against bribing foreign officials has recently come under increased scrutiny by the Securities and Exchange Commission (SEC), the United States Department of Justice (DOJ), and the plaintiffs' bar. At the same time, jurisdictions outside of the United States have also exhibited a renewed interest in enforcing their own FCPA-like laws.For individual officers and directors, the environment is equally challenging. Of particular concern may be an emerging focus by the SEC to hold individual officers personally liable for failing to implement proper internal controls designed to prevent FCPA violations.In this environment, directors and officers should gauge FCPA-related risks and put in place procedures and internal controls designed to mitigate these risks. To achieve these ends, officers and directors can help their companies, and themselves, by asking searching questions to assure themselves that the company is following the dual tracks of preventative training and proactive monitoring...

Drafted in the shadow of the Holocaust, the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) defined the international crime of genocide for the first time. Central to the Genocide Convention, and to the crime that it defined, is a unique focus on groups. Raphaël Lemkin, the inventor of the term “genocide,” understood the crime as an effort aimed at “the destruction of essential foundations of the life of national groups, with the aim of annihilating the groups themselves.” Article 2 of the Genocide Convention reflects Lemkin's desire to protect groups as social units by providing that only actions committed with the intent to destroy certain groups as such constitute genocide. Distinct from mass killing, which targets individuals, genocide targets the group to which those individuals belong...

Courts have called the decision a “bombshell,” a “renaissance,” and the dawning of a “new day” in the Sixth Amendment's Confrontation Clause jurisprudence. News reports have called the decision “an earthquake rocking America's criminal justice foundations.” Four years ago, in Crawford v. Washington, the United States Supreme Court revisited the scope and purposes of the constitutional guarantee that a criminal defendant shall “be confronted with the witnesses against him.” The case and its progeny redefined this clause's implications for hearsay statements...

During the recent wave of private equity buyouts of public companies, boards of directors for selling companies have been increasingly turning to go-shop provisions as a means of fulfilling the board's Revlon duty to maximize shareholder value. A go-shop provision operates as a post-signing market check by allowing a selling board to actively solicit offers from third parties after signing a merger agreement with an initial buyer. In the words of one publication for practicing lawyers, go-shops give the selling company the benefit of an open auction without any downside risk since they allow the selling company to lock in a price floor while retaining the ability to conduct further negotiations with other buyers for a higher price. However, there is also speculation that a go-shop is a “disingenuous article that boards are including in deals to protect themselves from angry shareholders . . . .”

Despite the lavish attention paid to the Ninth Amendment as supporting judicial enforcement of unenumerated rights, surprisingly little attention has been paid to the Amendment's actual text. Doing so reveals a number of interpretive conundrums. For example, although often cited in support of broad readings of the Fourteenth Amendment, the text of the Ninth says nothing about how to interpret enumerated rights such as those contained in the Fourteenth. The Ninth merely demands that such enumerated rights not be construed to deny or disparage other nonenumerated rights retained by the people. The standard use of the Ninth Amendment, in other words, has nothing to do with its text. The standard theory of the Ninth also places the text in considerable tension with that of the Tenth Amendment. Although both the Ninth and Tenth Amendments close with the same reference to “the people,” most contemporary scholars and courts treat the same term in the two amendments as having opposite meanings, with the Ninth referring to a single national people and the Tenth referring to the people in the several states. This Article addresses these and other textual mysteries of the Ninth Amendment and constructs a text-based theory of the Ninth that both explains its historical application and reconciles the Amendment with other texts in the Constitution, particularly the Tenth and Fourteenth Amendments.

Kurt Lash believes that, in addition to individual natural rights, the Ninth Amendment protects collective or majoritarian rights as well. In this essay I explain why his majoritarian vision is contrary to the antimajoritarianism of the man who devised the Ninth Amendment, James Madison, and those who wrote the Constitution. Not coincidentally, it is contrary to the individualism of the other amendments in the Bill of Rights, and to the public meaning of the Ninth Amendment as it was received during its ratification. It is also contrary to the individualist conception of popular sovereignty adopted in the text of the Constitution as interpreted by a four-to-one majority of the Supreme Court in its first major constitutional decision. And it is contrary to the individualist interpretation of the Ninth Amendment by the one source he cites who actually uses the word “collective”: St. George Tucker. In sum, the collectivist interpretation of the phrase “others retained by the people” is anachronistic--a projection of contemporary majoritarianism onto a text that is and was most naturally read as referring to the natural rights retained by all individuals, and to these rights alone.

I want to thank Randy Barnett for commenting on my article, A Textual-Historical Theory of the Ninth Amendment. Professor Barnett's essays on the Ninth Amendment in the 1990s triggered the modern debate over the original meaning of the Ninth, and his recent book, Restoring the Lost Constitution, synthesizes his earlier work and presents a sophisticated theory of constitutional rights. I welcome his thoughts and I completely understand his critical stance regarding my work; if my conclusions are correct they significantly undermine some of Barnett's key assertions about the original meaning and modern application of the Ninth Amendment. In his current essay, I believe that Barnett has identified some conceptual issues that could benefit from some additional clarification. His “individualist” reading of the Ninth and Tenth Amendments, however, is at odds with the common understanding of popular sovereignty at the time of the Founding and is contradicted by key pieces of historical evidence. Most of all, Barnett's failure to address Madison's actual testimony about the federalist meaning of the Ninth and Tenth Am

Ex parte Young does not represent an exception to ordinary principles of sovereign immunity, it does not employ a legal fiction, it does not imply a novel cause of action under the Constitution or other federal law, and it does not create a paradox by treating officers as state actors for one purpose and private persons for another. The conventional wisdom is wrong with respect to all those issues for the same reason: Young was about a traditional tool of equity, the injunction to restrain proceedings at law, or anti-suit injunction. By seeking an anti-suit injunction, a potential defendant at law can become a plaintiff in equity and present a defense in an affirmative posture. Asserting defenses against the government, like the railroads' constitutional defenses at issue in Young, does not offend sovereign immunity, so it does not require a fiction to cover up a violation of sovereign immunity. Anti-suit injunctions have long been a standard tool of equity, and so in approving one the Court in Young did not recognize a novel cause of action applicable only to government officers, and for that reason did not encounter a paradox. This Article elaborates on the argument just described, discusses the extent to which the opinion in Ex parte Young reflects the fact that it involved an anti-suit injunction, and briefly considers the contemporary implications of this way of understanding this foundational case.

This Article explains why the legal case for the recently disclosed National Security Agency surveillance program turns out to be stronger than what the Administration has advanced. In defending its action, the Administration overlooked the details surrounding one of the most important periods of presidentially imposed surveillance in wartime--President Franklin Delano Roosevelt's (FDR) wiretapping and his secret end-run around both the wiretapping prohibition enacted by Congress and decisions of the United States Supreme Court. In our view, the argument does not quite carry the day, but it is a much heftier one than those that the Administration has put forth to date to justify its NSA program. The secret history, moreover, serves as a powerful new backdrop against which to view today's controversy.

Six years after the 9/11 attacks, U.S. policy concerning the detention of alleged terrorists remains legally uncertain and politically contested. The Bush administration has used three different mechanisms--traditional civil trials, military commissions, and military detentions--to justify the detention of terrorists, and not always in an obviously principled or coherent fashion. Congress has legislated with respect to military commissions in the Military Commissions Act of 2006. But despite numerous reform proposals, Congress has declined to address the more consequential issue of military detention without trial in any detail or to address the proper relationship among the three detention mechanisms. The Supreme Court has continued its biannual consideration of detention issues by granting certiorari in Boumediene v. Bush, a case challenging the Military Commissions Act of 2006. But there is little prospect that Boumediene will lay the detention debate to rest...

Does the Federal Constitution protect a right not to procreate, and what does that mean? Modern reproductive technology has made this question both more salient and more problematic. For example, a number of courts and commentators have assumed the existence of a federal constitutional right not to procreate and relied on it to resolve disputes over stored frozen preembryos that couples have fertilized in the course of in vitro fertilization (IVF).In this Article, I challenge that assumption. I argue that these authorities err by relying on a monolithic conception of the right not to procreate. I instead contend that the right is best conceived as a bundle of rights containing three possible sticks: the right not to be a genetic parent, the right not to be a legal parent, and the right not to be a gestational parent. Using this framework, I show that while the Supreme Court's jurisprudence unquestionably protects a right not to be a gestational parent as a fundamental right, it does not compel recognizing a right not to be a genetic parent, when genetic parenthood is unbundled from the obligations of legal and gestational parenthood. I also examine three other challenges to the Court's and commentators' constitutional claim. First, I suggest that even if there is a fundamental right not to be a genetic parent, infringement thereof might survive constitutional scrutiny under the appropriate standard of review. Second, I argue that there is no state action in preembryo disputes and others like them, such that the Constitution is not implicated at all. And finally, I argue that the asserted constitutional right not to be a genetic parent may be subject to advance waiver, as are many other constitutional rights.

A common argument against privatization is that private providers will self-interestedly lobby to increase the size of their market. In this Article, I evaluate this argument, using, as a case study, the argument against prison privatization based on the possibility that the private prison industry will distort the criminal law by advocating for incarceration. I conclude that there is at present no particular reason to credit this argument. Even without privatization, actors in the public sector already lobby for changes in substantive law--in the prison context, for example, public corrections officer unions are active advocates of pro-incarceration policy. Against this background, adding the “extra voice” of the private sector will not necessarily increase either the amount of industry-increasing advocacy or its effectiveness. In fact, privatization may well reduce the industry's political power: Because advocacy is a “public good” for the industry, as the number of independent actors increases, the dominant actor's advocacy can decrease (since it no longer captures the full benefit of its advocacy) and the other actors may free ride off the dominant actor's contribution. Under some plausible assumptions, therefore, privatization may actually decrease advocacy. Under different plausible assumptions, the net effect of privatization on advocacy is ambiguous, but in any event, privatization does not unambiguously increase advocacy.The argument that privatization distorts policy by encouraging lobbying is thus unconvincing without a fuller explanation of the mechanics of advocacy.

Recent legal and economic scholarship has recognized that the government can use structural systems as an efficient way to reduce prohibited behavior. The federal tax system employs structural mechanisms, such as withholding taxes, to foster compliance. The use of structural systems to reduce tax evasion need not be limited to tax administration, however. The Article argues that substantive federal income tax law can--and in many contexts does--foster compliance by harnessing the structural incentives of third parties. Although this phenomenon has gone largely unnoticed, third parties are routinely used by the tax system to verify the bona fides of taxpayer claims in diverse contexts involving reimbursed amounts and other receipts. Yet, third parties do not always behave in ways that are helpful for tax enforcement. The Article therefore identifies contexts in which a third party may have an incentive to collude with the taxpayer. The Article argues that these contexts are ones that the government needs to scrutinize closely and, in certain cases, obstruct with legislation. By contrast, the government can afford to free ride on the incentives of a third party in contexts in *696 which the transfer of funds from the third party to the taxpayer is a zero-sum game.

In the last two decades, the dominant norm in fundamental tax reform has shifted from income taxation to consumption taxation, among academics no less than policymakers. Few have recognized, however, that the case for a consumption tax overlaps substantially with that for lifetime income averaging, an idea that has drawn considerably less support. In particular, the case for both is strongest if one accepts the permanent income hypothesis, which holds that people's consumption decisions depend on expected lifetime income, not current-period income. Likewise, few have recognized that the grounds for unease about the case for income averaging (as an ideal system, leaving aside administrative concerns) apply equally to the case for consumption taxation.Within a welfare economics framework, the case for both norms is close to irrefutable if one makes three key assumptions: that markets are complete, that individuals engage in consistent rational choice given their preferences, and that the only relevant information about taxpayer “ability” is that provided by an undifferentiated measure of lifetime earnings. These assumptions often fail to hold. Where they fail, (1) allowing income averaging between periods may be undesirable, (2) the case for a consumption tax becomes less clear-cut, although still compelling on administrative grounds, and (3) as revealed by the “new dynamic public finance” literature in economics, there is a strong rationale for taxing saving, as does an income tax but not a consumption tax.

We appreciate the opportunity to comment on Dan Shaviro's important piece on how the permanent income hypothesis relates to tax policy. In this piece, Shaviro points out that the arguments in favor of a consumption tax on the one hand, and income averaging on the other, raise significantly related issues. As far as we know, Shaviro is the first person writing in the legal literature to make this connection, and his insightful work is sure to inspire further explorations of the issue...

In advancing his prospect theory of patents, Edmund Kitch dismissed the possibility of distributing rights to particular inventions through auctions, arguing that the patent system avoids the need for governmental officials to define the boundaries of inventions that have not yet been created. Auctions for patent rights to entire inventive fields, however, might accentuate the benefits of a prospect approach, by allowing for earlier and broader patents. Auction designs that award the patent to the bidder that commits the most money to research and development or that agrees to charge the lowest price, meanwhile, can reduce the costs of the prospect approach. Concerns about the government's ability to decide correctly when to hold auctions, however, provide an uneasy case for patent races over patent auctions. More modest uses of auctions might improve welfare, though. For example, an auction to a small number of parties of the right to race in a technological field might reduce wasteful duplication and thus accelerate innovation. Similarly, patentees might be allowed to demand auctions for extended patent scope, with the caveat that a patentee would need to outbid others by a substantial amount to win such an auction.

Patent thickets may inefficiently retard cumulative innovation. This Article explores two alternative mechanisms that may be used to weed out patent thickets. Both mechanisms are intended to reduce the number of patents in our society. The first mechanism we discuss is price-based regulation of patents through a system of increasing renewal fees. The second and more innovative mechanism is quantity-based regulation through the establishment of a system of Tradable Patent Rights. The formalization of tradable patent rights would essentially create a secondary market for patent permits in which patent protection will be bought and sold. The Article then discusses how price and quantity regulation can be combined to effect superior weeding.

Addressing consistency in the application of the law, former Attorney General Robert Jackson told Congress in 1940: “It is obviously repugnant to one's sense of justice that the judgment meted out . . . should depend in large part on a purely fortuitous circumstance; namely the personality of the particular judge before whom the case happens to come for disposition.” Yet in asylum cases, which can spell the difference between life and death, the outcome apparently depends in large measure on which government official decides the claim. In many cases, the most important moment in an asylum case is the instant in which a clerk randomly assigns an application to a particular asylum officer or immigration judge.This study analyzes databases of decisions from all four levels of the asylum adjudication process: 133,000 decisions involving nationals from eleven key countries rendered by 884 asylum officers over a seven-year period; 140,000 decisions of 225 immigration judges over a four-and-a-half-year period; 126,000 decisions of the Board of Immigration Appeals over a six-year period; and 4215 decisions of the U.S. courts of appeals during 2004 and 2005. The analysis reveals amazing disparities in grant rates, even when different adjudicators in the same office each considered large numbers of applications from nationals of the same country. For example, in one regional asylum office, 60% of the officers decided in favor of Chinese applicants at rates that deviated by more than 50% from that region's mean grant rate for Chinese applicants, with some officers granting asylum to no Chinese nationals, while other officers granted asylum in as many as 68% of their cases. Similarly, Colombian asylum applicants whose cases were adjudicated in the federal immigration court in Miami had a 5% chance of prevailing with one of that court's judges and an 88% chance of prevailing before another judge in the same building. Half of the Miami judges deviated by more than 50% from the court's mean grant rate for Colombian cases.Using cross-tabulations based on public biographies, the paper also explores correlations between sociological characteristics of individual immigration judges and their grant rates. The cross-tabulations show that the chance of winning asylum was strongly affected not only by the random assignment of a case to a particular immigration judge, but also in very large measure by the quality of an applicant's legal representation, by the gender of the immigration judge, and by the immigration judge's work experience prior to appointment.In their conclusion, the authors do not recommend enforced quota systems for asylum adjudicators, but they do make recommendations for more comprehensive training, more effective and independent appellate review, and other reforms that would further professionalize the adjudication system.

This Article is about consistency in adjudication. With the United States asylum system as a backdrop, I explore why consistency matters, what its determinants are, and whether it can be substantially achieved at a price that is worth paying.This Article is also about the United States asylum adjudication system. Asylum challenges the national conscience in distinctive ways. It generates hard questions about our moral responsibilities to fellow humans in distress; the recognition of human rights and our willingness to give them practical effect; the extent of our obligations to those who are not U.S. citizens; U.S. legal and moral obligations to the international community; the roles of state sovereignty and borders; foreign relations; allocation of finite national resources; and racial, religious, linguistic, and ideological pluralism.

In Refugee Roulette: Disparities in Asylum Adjudication (the Asylum Study), Professors Ramji-Nogales, Schoenholtz, and Schrag provide a comprehensive analysis of new data to document decisional disparities that undermine the fairness of asylum adjudication. The Asylum Study is an empirical project of remarkable scope. It examines patterns of asylum decisions at four different adjudication levels: at the asylum office interview, in immigration court, on administrative appeal to the Board of Immigration Appeals (BIA), and on petition for review to the federal courts of appeals. At each level, the Asylum Study generates empirical findings to support what we knew mostly by anecdote-- that there are eye-popping disparities in the grant rates of asylum adjudicators that cannot be explained by the underlying merits of the cases.

The Fourth Amendment protects reasonable expectations of privacy, but the Supreme Court has refused to provide a consistent explanation for what makes an expectation of privacy “reasonable.” The Court's refusal has disappointed scholars and frustrated students for four decades. This Article explains why the Supreme Court cannot provide an answer: no one test can accurately and consistently distinguish less troublesome police practices that do not require Fourth Amendment oversight from more troublesome police practices that are reasonable only if the police have a warrant or compelling circumstances. Instead of endorsing one approach, the Supreme Court has recognized four coexisting approaches. There are four models of Fourth Amendment protection: a probabilistic model, a private facts model, a positive law model, and a policy model. Using multiple models has a major advantage over using one model. It allows the courts to use different approaches in different contexts depending on which approach most accurately and consistently identifies practices that need Fourth Amendment regulation. Explicit recognition of the four models would advance this function, resulting in more accurate and consistent Fourth Amendment rules.

In August 2006, a federal district court held that the Terrorist Surveillance Program violates the Fourth Amendment. Scholars have debated the legality and constitutionality of the program extensively since the New York Times first publicized its existence in December 2005. In this Article, I look beneath the surface of that raging debate to one of the premises underlying the court's conclusion, that the Fourth Amendment protects the confidentiality of communications. I explore the origins of the notion that the Fourth Amendment protects communications privacy. Most scholars and commentators look to Justice Brandeis's famous dissent in the 1928 case Olmstead v. United States. In this Article, I contend that we must go further back, back to surveillance of the first communications network in the United States, the post office. I explain the history of postal surveillance and show that the principle of communications privacy derives not from the Fourth Amendment or even from the Constitution at all. Rather, it comes from early postal policymakers who put that principle into postal ordinances and statutes in the late eighteenth century. Over time, the principle of communications privacy became embedded into the postal network by both law and custom. It was only then that the Court incorporated it into the Fourth Amendment in the 1878 case Ex parte Jackson, which in turn served as one of the bases of Justice Brandeis's Olmstead dissent. So, if today we see the principle of communications privacy as fundamental to the Fourth Amendment, we have postal policymakers to thank, for it was through the post office, not the Constitution or the Bill of Rights, that early Americans first established that principle.

The decades following the end of the Cold War have witnessed the growing proliferation of international regulatory institutions with overlapping jurisdictions and ambiguous boundaries. Practicing jurists have expressed concern about the effects of this increased fragmentation of international law, but for the most part international legal theorists have tended to dismiss such concerns as unwarranted. Indeed, many regard the resulting competition for influence among institutions as a generative, market-like pluralism that has produced more progress toward integration and democratization than could ever have been achieved through more formal means.In this Article we argue that the problem of fragmentation is more serious than is commonly assumed because it operates to sabotage the evolution of a more democratic and egalitarian international regulatory system and to undermine the reputation of international law for integrity. It is also more resistant to reform. Powerful states labor to maintain and even actively promote fragmentation because it enables them to preserve their dominance in an era in which hierarchy is increasingly viewed as illegitimate, and to opportunistically break the rules without seriously jeopardizing the system they have created.Fragmentation accomplishes this in three ways. First, by creating institutions along narrow, functionalist lines and restricting the scope of multilateral agreements, it limits the opportunities for weaker actors to build the cross-issue coalitions that could potentially increase their bargaining power and influence. Second, the ambiguous boundaries and overlapping authority created by fragmentation dramatically increase the transaction costs that international legal bodies must incur in trying to reintegrate or rationalize the resulting legal order. Third, by suggesting the absence of design and obscuring the role of intentionality, fragmentation frees powerful states from having to assume responsibility for the shortcomings of a global legal system that they themselves have played the major role in creating. The result is a regulatory order that reflects the interests of the powerful that they alone can alter.

In recent years, corporate governance scholarship has begun to focus on the most common distribution of public corporation ownership: outside of the United States and the United Kingdom, publicly owned corporations often have a controlling shareholder. The presence of a controlling shareholder is especially prevalent in developing countries. In Asia, for example, some two-thirds of public corporations have one, most of whom represent family ownership. The law and finance literature, exemplified by a series of articles by Rafael La Porta, Florencio Lopez-de-Silanes, Andrei Shleifer, Robert Vishny and others, treats the prevalence of controlling shareholders as the result of bad law; more specifically, controlling shareholders are ubiquitous in countries that do not adequately protect minority shareholders from the extraction of private benefits of control by dominant shareholders. The logic is straightforward. Controlling shareholders will not part with control because that will expose them to exploitation by a new controlling shareholder who acquires a controlling position in the market.

Over the course of the twentieth century, the medical community “appeared to be winning the battle against communicable diseases” with antibiotics and vaccines. Yet, in the last few decades, new infectious diseases and conditions such as Human Immunodeficiency Virus (HIV), Acquired Immunodeficiency Syndrome (AIDS), Severe Acute Respiratory Syndrome (SARS), Ebola, and avian influenza (most notably virus H5N1) have created grave new threats. Although HIV/AIDS is not particularly contagious if appropriate precautions are taken, avian influenza, SARS, and Ebola are believed to be highly contagious, fatal, and sometimes without mechanisms to prevent transmission.

When the United States Supreme Court decided Bush v. Gore, ending the controversial recount of presidential votes in Florida and handing the contested 2000 election to George W. Bush over Al Gore, some election law scholars told a “lemonade from lemons” story: It is true there was much to criticize about the Supreme Court's decision to take the case, its equal protection rationale, and its controversial remedial decision to end the recount rather than remand for a recount complying with (newly articulated) equal protection standards. But the opinion could usher in an era when courts would use the equal protection clause as a tool to fix some fundamental inequalities in the “nuts and bolts” of our country's hyper-decentralized election administration system. These scholars stood opposed to those who saw the case--especially given its language “limiting” its precedential reach --as a “one-day-only” ticket to assure the choice of Bush over Gore for President and to another group of scholars who saw it as an appropriate resolution of the case, perhaps avoiding a constitutional crisis.

The United States Patent and Trademark Office is tasked with the job of reading patent applications and determining which ones qualify for patent protection. It is a herculean task, and the Patent Office pursues it subject to enormous informational and budgetary constraints. Nonetheless, under current law, courts are bound to defer to the Patent Office's decisions regarding patent validity. That is a mistake. Deference to previous decisions is appropriate in instances where those previous decisions have a high likelihood of being accurate. But to grant significant deference to the initial process of patent review is to defer to an unavoidably and significantly inaccurate signal. Put bluntly, early patent review is not reliable and is unlikely to become so. In this Article, we explain why and propose the creation of a two-tier system of patent validity, with a strong presumption being given to patents after they have been subject to any of a number of intensive review procedures, but only a weak presumption being awarded as a matter of course upon patent issuance.

The conventional wisdom amongst scholars and advocates of employment discrimination law is that the success of Title VII is significantly hampered by the enduring doctrine of employment at will. As long as employers have broad discretion to fire employees for any reason, no reason, or a bad reason, employers can easily get away with terminating or refusing to promote racial minorities and women as long as some credible nondiscriminatory reason, such as personal animosity, can be presented. This account feeds the widely accepted view that employment at will and the goals of Title VII, namely equal employment opportunity, are at odds. This Article challenges this piece of conventional wisdom by showing how job security protections can also exacerbate racial inequality in employment. It examines the recent race riots and student protests against proposed labor law changes in France to unearth the tension between combating racial discrimination in hiring and protecting all employees' job security. Scholars and advocates of employment discrimination law should be aware of the ways in which both employment at will and job security protections can function in different contexts to exacerbate racial inequalities in employment. Such awareness should encourage the development of a broader perspective on equal employment opportunity that moves beyond the limited set of problems that are identified by the litigation of employment discrimination cases.

Ought implies can. This Article investigates whether the central moral directives of liberalism are ones citizens can--as a matter of human cognition--be expected to honor. Liberalism obliges the state to disclaim a moral orthodoxy and instead premise legal obligation on secular grounds accessible to persons of diverse cultural persuasions. Studies of the phenomenon of cultural cognition, however, suggest that individuals naturally impute socially harmful consequences to behavior that defies their moral norms. As a result, they are impelled to repress morally deviant behavior even when they honestly perceive themselves to be motivated only by the secular good of harm prevention. This Article identifies how this dynamic transforms seemingly instrumental debates over environmental regulation, public health, economic policy, and crime control into polarizing forms of illiberal status competition. It also proposes a counterintuitive remedy: rather than attempt to cleanse the law of culturally partisan meanings--the discourse strategy associated with the liberal norm of public reason--lawmakers should endeavor to infuse it with a surfeit of meanings capable of simultaneously affirming a wide range of competing worldviews.

At first glance, judicial anticipation of public outrage and its effects seems incompatible with judicial independence. Nonetheless, judges might be affected by the prospect of outrage for both consequentialist and epistemic reasons. If a judicial ruling would undermine the cause that it is meant to promote or impose serious social harms, judges might have reason to hesitate on consequentialist grounds. The prospect of public outrage might also suggest that the court's ruling would be incorrect on the merits; if most people disagree with the court's decision, perhaps the court is wrong. Those who adopt a method of constitutional interpretation on consequentialist grounds are more likely to want to consider outrage than are those who adopt an interpretive method on nonconsequentialist grounds (including some originalists). The epistemic argument for judicial attention to public outrage is greatly weakened if people suffer from a systematic bias or if public outrage is a product of an informational, moral, or legal cascade. There is also an argument for banning consideration of the effects of public outrage on rule-consequentialist grounds: judges might be poorly suited to make the relevant inquiries, and consideration of outrage might produce undue timidity. But in rare (but important) cases, judges legitimately attend to outrage and its effects as a way of ensuring against futile or perverse outcomes. An understanding of the consequentialist and epistemic grounds for judicial attention to public outrage also bears on the appropriate understanding of political representation; it offers lessons for the decisions of other public officials, including presidents, governors, and mayors, who might be inclined to make decisions that will produce public outrage.

In at least some hard cases, the Justices of the United States Supreme Court almost certainly moderate their decisions--or avoid deciding altogether--so as not to provoke the public. Cass Sunstein's characteristically insightful and engaging article is an attempt to justify this practice, and in the process, to define its proper limits. In this, Sunstein follows in the footsteps of Alexander Bickel, whose pathbreaking The Least Dangerous Branch was devoted to the same cause. Their emphases are different, however. The heart of Bickel's book is his account of the “passive virtues,” such as the justiciability and vagueness doctrines, that courts use to avoid decision or to rule narrowly where a broad decision might unduly provoke the public. Sunstein's focus is why judges should care about public outrage in the first place.

In both legal practice and legal scholarship, it is sometimes best to proceed without attempting to answer the foundational questions. Originalists can inquire into the original public meaning of the Equal Protection Clause without defending originalism. Economic analysts of law can ask how to promote efficiency without defending the view that the law should aim at efficiency. It would be useful to know how utilitarians and retributivists would approach punitive damage awards, without resolving the question whether we should be utilitarians or retributivists. Here, as elsewhere, a division of labor makes good sense. Some people (or some works) take certain judgments for granted and proceed from there; other people (or other works) try to resolve the deepest questions.

Book Review of Symeon C. Symeonides' The American Choice-of-Law Revolution: Past, Present and Future (2006).

Imagine a computer chip composed of millions of transistors and hundredsor even thousands of individually patented inventions. Could just one of thosepatented components ever account for the entire economic value of the chip?Could just one such invention ever account for the entire value of a totalpersonal computer system— monitor, keyboard, mouse, printer, software, andall—sold along with the chip? While these questions may seem far-fetched,they may soon be answered in the affirmative under a U.S. patent law doctrineknown as the “entire market value rule.”