Volume 61

Since 2002, popular media has been disseminating serious concerns that the integrity of the criminal trial is being compromised by the effects of television drama. This concern has been dubbed the "CSI effect" after the popular franchise Crime Scene Investigation (CSI). Specifically, it was widely alleged that CSI, one of the most watched programs on television, was affecting jury deliberations and outcomes. It was claimed that jurors confused the idealized portrayal of the capabilities of forensic science on television with the actual capabilities of forensic science in the contemporary criminal justice system. Accordingly, jurors held inflated expectations concerning the occurrence and probative value of forensic evidence. When forensic evidence failed to reach these expectations, it was suggested, juries acquitted. In short, it was argued that, in cases lacking forensic evidence in which juries would have convicted before the advent of the CSI franchise, juries were now acquitting.

The jury is central to American law. The right to a jury trial is "no mere procedural formality, but a fundamental reservation of power in our constitutional structure." Although the jury has been much maligned, the law continues to treat the jury as almost sacred, and many legal scholars and social scientists continue to defend the jury system...

From Euripides to Shakespeare to Hitchcock, criminal madness has played a central role in the most popular and influential media of the day. This is, perhaps, not surprising. Not only is criminal madness an intrinsically powerful melodramatic plot device, it touches upon fundamental social and psychological issues central to cultural conceptions of justice, proper social organization, and the self. Criminal madness also has posed a hard problem for law, evidenced by the timeless controversy over the boundaries of criminal responsibility, the basic meaning of the insanity defense, and the broader problem of what to do with people whose mental, intellectual, or psychological attributes diminish their ability to abide by the law.

There is a vast literature tracing, debating, and analyzing the legal tests brought to bear by judges and juries to determine if a criminal defendant is legally insane and hence not responsible for his or her criminal conduct. Far less has been written, however, about the cultural iconography of criminal madness—that is, the array of images, narratives, and symbols that popular culture deploys to enable it to tell stories about the kinds of disturbances to the social order that result from "madness" (however that concept is defined). That omission deserves redress. One of the assumptions of this Article—and one shared by those working in the growing field of law and culture studies—is that the development and transformation of cultural iconography does not play out in a vacuum any more than the development and transformation of "law." Obviously, neither popular culture nor law would make any sense understood as a purely autonomous phenomenon. What is perhaps less obvious is the possibility that important insights about the law—specifically, the law of criminal madness—can be gleaned from the evolution of its cultural iconography. What follows is an effort to trace the iconography of criminal madness by reference to popular cinema and an attempt to link it with the law's development over the same span. Part I provides some prefatory observations about the relation of film and culture to law. Part II explores the depiction of criminal madness in the 1930s, primarily through the monster movies of the era. Part III describes the growing embrace of psychological and psychiatric theories in midcentury cinema, which occurred precisely during a period in which the insanity defense was liberalized and constitutional checks on the state's power to institutionalize mad criminals were recognized. Finally, Part IV examines dramatic post-1970s changes in cinematic portrayals of criminals, the criminal justice system, and mad criminals, and explores ways in which the new iconography of criminal madness contributed to a dramatic shrinkage of the rights of mentally ill offenders.

Above the fold:

HUNTSVILLE, Texas—Texas executed [name of inmate or description of inmate as a killer] on [day of week] for [brief description of crime for which inmate was sentenced to death].

“[Final statement of inmate, made from lethal injection gurney],” [name of inmate] said. He was pronounced dead at [time], [number] of minutes after the lethal drugs began to flow.

[Inmate’s victim’s family members’ names] [and/or] [inmate’s family members’ names] watched through a window. “[Comment on execution]” they said / [they declined to speak to reporters] / [there was or was not eye contact between inmate and victim’s family members].

[More detailed description of inmate’s crime, perhaps explaining aggravating circumstances such as prior crimes.]

[Whether [name of inmate] maintained his innocence / said the killing was accidental.]

[Name of inmate] was the [ordinal number] person executed this year in Texas, the nation’s most active death penalty state.

Insert the name of the condemned man and some facts about the crime; add a paragraph quoting the victim’s family; note any last-minute protestations of innocence or expressions of remorse on the part of the defendant; and update the execution tally. In a matter of grave national importance—the execution of Americans by this country’s most notorious killing state, Texas—this formulaic ritual constitutes American crime reporting. After a brief suspension during the United States Supreme Court’s consideration of the constitutionality of lethal-injection procedures in Baze v. Rees, Texas resumed executions in June 2008. From that point until the end of the year, it executed eighteen people. Each of the eighteen men killed by the state of Texas raised substantial questions about the fairness and validity of their convictions and death sentences: representation by ineffective trial counsel, mental illness, violations of international covenants, and failures by state and federal appellate courts to reach meritorious issues because of procedural bars. But such information has no place in the fill-in-the-blanks template employed by the newspapers providing coverage of the executions.

In the last few years, despite scant empirical support, the media have identified as a primary reason for high HIV rates among black women the phenomenon of black men who live on the "down low" (or DL). Such men are said to maintain primary romantic relationships with women while engaging in secret sexual liaisons with men. Drawing on a perpetrator-victim framework, this discourse pits "deviant" black men who have sex with men (MSM) against "respectable" black women and the broader black community. Yet such media discourse tends to erase structural components that produce high HIV rates and place the blame solely on individuals ripped from their broader social context. By contrast, this Article offers a structural analysis of the issue to reveal governmental and social mechanisms that marginalize black women and black MSM. First, government policies such as mass incarceration shrink the pool of black male partners for black women and black MSM, which impacts individual decision making. Second, black women and black MSM struggle against "romantic segregation," which assumes that blacks must mate with blacks and fails to examine nonblack men's relative disinterest in black women and black MSM. Third, the Centers for Disease Control's early framing of HIV/AIDS as a "gay disease" disadvantaged many black women and nongay-identified black MSM who did not recognize that they were at risk.

Analyzing discourse on the DL is important because it may have implications for criminal and public health law. In response to fears that HIV-positive people recklessly spread disease, more than half the states have passed criminal laws aimed at HIV-positive people who expose sexual partners to a risk of HIV transmission. Like the DL discourse, these laws understand HIV transmission through a crude lens of perpetrators and victims. Actual dynamics in sexual relationships tend to be far more complex and resistant to regulation by the criminal law, which helps explain the minimal number of prosecutions brought under these laws. Instead of relying on a criminal law model to reduce HIV transmission, I call for structural solutions, which may channel individual sexual behavior in productive ways, without directly regulating it.

Lawyers have been arguing their cases before the Supreme Court for over two centuries, while the phenomenon of legal blogs is perhaps a decade old. Yet legal blogs cannot be dismissed as merely a sideshow novelty—they are already capable of having a substantial impact on Supreme Court litigation. Events surrounding the recent decision in

Kennedy v. Louisiana demonstrate that blogs can both highlight errors in Court decisions and generate new arguments relevant to ongoing litigation. In addition, legal blogs create the opportunity for Supreme Court advocates to engage in ex parte blogging—posting persuasive material about a pending case in the hopes of directly influencing the Court's decisions. Attorneys for parties and amici in cases before the Court already sometimes post arguments online about their cases shortly after oral argument—potentially a crucial time in the Court's decision-making process—and evidence suggests that the Justices and their clerks may well encounter some of these posts online. Yet no one has analyzed the ethical implications of this practice, or what its effects might be on different groups appearing before the Court. This Note examines the relationship between ex parte blogging and the traditional concepts of prejudicial publicity and ex parte communications. The Note concludes that ex parte blogging threatens the impartial administration of justice and will systematically disadvantage some litigants. Thus, the legal profession should consider regulating ex parte blogging, despite the contributions that counsel for parties and amici might make to public discourse about constitutional and legal issues.

This Article makes sense of a lie. It shows how legal jurisdiction depends on a falsehood—and then explains why it would.

To make this novel argument, this Article starts where jurisdiction does. It recounts jurisdiction’s foundations—its tests and motives, its histories and rules. It then seeks out jurisdictional reality, critically examining a side of jurisdiction we too often overlook. Legal jurisdiction may portray itself as fixed and unyielding, as natural as the force of gravity, and as stable as the firmest ground. But jurisdiction is in fact something different. It is a malleable legal invention that bears a false rigid front. This Article aims to prove as much.

This Article then examines both the flexibility and the ruse. It supports the first with two uncommon jurisdictional theories—one that shows how pragmatics, remedial context, and rights-accommodation permit courts to reach smart equilibriums; another that details the cultural, “spatial,” and federalist value of jurisdictional malleability. It then explains the second through more conditional claims about the functional, deliberative, and structural benefits of jurisdiction’s long-running trick. This study does not mean to excuse the inexcusable. It hopes instead to offer new insight on an old problem. And it helps to make sense of why jurisdiction’s lie has so long endured.

For over twenty years, our immigration laws have required employers to screen their workforces for “unauthorized” immigrants. But rather than punish employers for failing to carry out these duties, the Department of Homeland Security (DHS) has worked with employers to identify unauthorized workers for removal—even where it is abundantly clear that employers are reporting the very workers they unlawfully hired in the first place, and are doing so to retaliate against workers who assert labor and employment rights. How can a law that was designed to punish employers be used to reward them? This Article attempts to explain this counterintuitive result. Although the DHS-employer relationship appears to be contentious and antagonistic, that relationship can often be highly collaborative and mutually beneficial, where the DHS overlooks employer indiscretions in exchange for help identifying potentially removable immigrants. In this way, employers resemble other immigration screeners, like airport inspectors and state and local law enforcement officers, who assist the DHS by winnowing down to a manageable size the pool of potentially removable immigrants. This Article therefore argues that employers should be regulated as screeners where employers should be punished for using their screening authority beyond the scope of its intended use, which often means employers using reporting and the threat of reporting to avoid liability for labor and employment violations. Thus, while our immigration laws contemplate punishing employers at the front end for who they hire, this Article argues our laws should also punish employers at the back end for who they report. As one set of remedies, this Article proposes subjecting employers to possible audits if they report workers to the DHS, and applying the exclusionary rule against complicit immigration officials.

Fashion is one of the world's most important creative industries. It is the major output of a global business with annual U.S. sales of more than $200 billion—larger than those of books, movies, and music combined. Everyone wears clothing and inevitably participates in fashion to some degree. Fashion is also a subject of periodically rediscovered fascination in virtually all the social sciences and the humanities. It has provided economic thought with a canonical example in theorizing about consumption and conformity. Social thinkers have long treated fashion as a window upon social class and social change. Cultural theorists have focused on fashion to reflect on symbolic meaning and social ideals. Fashion has also been seen to embody representative characteristics of modernity, and even of culture itself.

Indeed, it is hard to imagine a locus of social life—whether in the arts, the sciences, politics, academia, entertainment, business, or even law or morality—that does not exhibit fashion in some way. People flock to ideas, styles, methods, and practices that seem new and exciting, and then eventually the intensity of that collective fascination subsides, when the newer and hence more exciting emerge on the scene. Participants of social practices that value innovation are driven to partake of what is "original," "cutting edge," "fresh," "leading," or "hot." But with time, those qualities are attributed to others, and another trend takes shape. This is fashion. The desire to be "in fashion"—most visibly manifested in the practice of dress—captures a significant aspect of social life, characterized by both the pull of continuity with others and the push of innovation toward the new...

For over two centuries the United States has used copyright and patent to stimulate the production of many forms of creativity. Over time these rights have grown more economically significant; today intellectual property (IP) law is rightly seen not as a fringe topic, but as part of the core of contemporary economic and cultural policy debates. Increasingly, both lawyerly and lay discussions about creativity in the arts and sciences touch upon issues of ownership, control, and incentives, which together comprise the foundational questions of IP law.

Some forms of creative work, however, have never been protected by American law. These forms of creativity exist in IP's "negative space"—by which we mean the territory where IP law might regulate, but (perhaps for accidental or nonessential reasons) does not. The study of these unprotected forms of creativity ought to be of great interest. If we see these creative endeavors languishing as a result of uncontrolled copying, we might decide to extend IP law in order to curtail appropriation and induce investment and innovation. On the other hand, if an unprotected area of creative work thrives in the absence of legal rules against copying, we would do well to know how. We might also ask whether other currently protected forms of creativity could also flourish without expensive and potentially inefficient monopoly protections...

We are pleased that our Article, The Law, Culture, and Economics of Fashion, attracted a long and thoughtful response from two distinguished participants who have been so influential in this debate. The simultaneous desire for differentiation and flocking is alive and well. In their response, The Piracy Paradox Revisited, Kal Raustiala and Christopher Sprigman (RS) point out agreement on key issues, and simultaneously stress disagreement with aspects of our model, adhere to their "induced obsolescence" account of fashion trends, which we reject, and raise doubts about our policy proposal. The exchange embodies the dynamics that are pervasively in tension, in creative—including academic—pursuits.

Our differences in analysis are quite fundamental. First, we identify a key distinction between close copying and remixing, and they reject the importance of such a distinction. We think the distinction is important because of the differential effects of close copies and interpretations on innovation, which we discuss at length in our article. The lumping of the two activities together under the label of "piracy" has led to confusion here and elsewhere in intellectual property. Our purpose in emphasizing the line between the two is of course not to map how current copyright law treats copying, but rather to consider what distinction would make most sense in the fashion design context, an area that current copyright law does not reach...

The Eleventh Amendment states plainly: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." Despite decades of vociferous debate, this seemingly docile text has eluded even the most valiant efforts to produce scholarly consensus.

Hans v. Louisiana and Ex parte Young are two of the most important pillars bracing sovereign immunity law. They are also the two most misunderstood. Hans is widely accepted as standing for a simple proposition: the Eleventh Amendment precludes citizens from bringing suits against their own states. Practically every discussion of Hans implicitly yet erroneously assumes that the decision represented some sort of departure from prior case law. Moreover, scholars and judges currently understand Hans as a decision that, in interpreting the Eleventh Amendment, either obfuscated its text or illuminated its soul. Hans does neither or, at least, it meant to do neither. Hans was not an atextual exegesis of the Eleventh Amendment; it was not even a reading of the Eleventh Amendment. More importantly, and contrary to conventional wisdom, Hans was consistent with every sovereign immunity case that preceded it. Hans was, in fact, a mundane application of a remarkably consistent set of common law doctrines...

On October 17, 2006, seated in the East Room of the White House, President George W. Bush signed the Military Commissions Act of 2006 (MCA) into law. Moments before, he succinctly—if not entirely accurately—recounted the Act's history:

In the months after 9/11, I authorized a system of military commissions to try foreign terrorists accused of war crimes. . . . [T]he legality of the system I established was challenged in the court, and the Supreme Court ruled that the military commissions needed to be explicitly authorized by the United States Congress . . . I asked Congress for that authority, and they have provided it.

But what exactly did the MCA grant our federal executive authority to do?

At the close of his speech, President Bush claimed that those who had supported the MCA were bequeathing to America a "freer, safer . . . world." But in the weeks preceding the bill's passage, many had vociferously disagreed with the President's characterization of the bill. In editorials and in legal web logs, constitutional scholars were up in arms. Tellingly, complaints came from across the political-ideological spectrum, and at least one cable news anchor went so far as to denounce the MCA as the "[b]eginning of the end of America." There seemed to be much to disagree over. Said one vocal law professor, "Choosing the most indefensible provision of this bill is a tall order—there are many worthy candidates." Still, objections to the bill did coalesce around certain poles. Chief among detractors' concerns were provisions of the MCA appearing to provide the executive with the authority to try American citizens before military commissions or detain them indefinitely...

One of the central predicates of legal regulation of media ownership is that ownership consolidation reduces substantive viewpoint diversity. Appellate courts and, in turn, the Federal Communications Commission have increasingly demanded evidence for this convergence hypothesis, but extant empirical measures of viewpoint diversity sidestep the problem, ignoring diversity, viewpoints, or both. Our Article develops and offers a finely tuned, time-varying statistical measure of editorial viewpoint diversity, based on a new database of over 1600 editorial positions in twenty-five top newspapers from 1988-2004. Using this new measure, we assess the validity of the convergence hypothesis by examining the evolution of editorial viewpoints over the course of five major mergers and acquisitions. Our data reveal complex patterns that defy extant accounts, showing stability, convergence, and divergence of viewpoints in the face of—and depending on the circumstances of—consolidation. These findings fundamentally challenge extant empirical regulatory assumptions—pointing to the crucial role of editorial policies—and deeply inform the viability of the ownership regulations and the interpretation of the 1996 Telecommunications Act.

Federal prosecutors wield enormous power. They have the authority to make charging decisions, enter cooperation agreements, accept pleas, and often dictate sentences or sentencing ranges. There are currently no effective legal checks in place to police the manner in which prosecutors exercise their discretion. As a result, in the current era dominated by pleas instead of trials, federal prosecutors are not merely law enforcers. They are the final adjudicators in the 95% of cases that are not tried before a federal judge or jury. In a government whose hallmark is supposed to be the separation of powers, federal prosecutors are a glaring and dangerous exception. They have the authority to take away liberty, yet they are often the final judges in their own cases. One need not be an expert in separation-of-powers theory to know that combining these powers in a single actor can lead to gross abuses. Indeed, the combination of law enforcement and adjudicative power in a single prosecutor is the most significant design flaw in the federal criminal system. Although scholars have made persuasive cases for greater external controls on prosecutors, these calls for reform are unrealistic in the current political climate. The solution must be sought elsewhere.

This Article looks within the prosecutor's office itself to identify a viable corrective on prosecutorial overreaching. In particular, by heeding lessons of institutional design from administrative law, this Article considers how federal prosecutors' offices could be designed to curb abuses of power through separation-of-functions requirements and greater attention to supervision. The problems posed by federal prosecutors' combination of adjudicative and enforcement functions are the very same issues raised by the administrative state—and the solutions fit equally well in both settings. In both instances, individuals who make investigative and advocacy decisions should be separated from those who make adjudicative decisions, the latter of which should be defined to include some of the most important prosecutorial decisions today, including charging, the acceptance of pleas, and the decision whether or not to file substantial assistance motions. Using this model from administrative law would not only be effective, it would also be more politically viable than the leading alternative proposals for curbing prosecutorial discretion.

Three-year-old Nathan Siler told Detective Larry Martin that he wanted to see his mother who, Nathan claimed, was "sleeping standing" in the garage. Tragically, Nathan's mother was dead, hanging from a "yellow cord tied to the track of the overhead garage door." Nathan told Martin that he had seen his father, Brian Siler, and mother fight in the garage the night before and that his father had placed a "yellow thing" around his mother's neck. But Nathan apparently did not understand his mother was dead.

Because Nathan did not testify at Brian's murder trial and the trial court admitted Nathan's statements as evidence without Brian's counsel ever cross-examining Nathan, Brian claimed that the trial court had violated his Sixth Amendment right to confront the witnesses against him. The Sixth Amendment of the U.S. Constitution states that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." In Crawford v. Washington, the U.S. Supreme Court held that a "witness[] against" the accused was one "who bear[s] testimony." According to the Court, the Confrontation Clause was primarily concerned with "testimonial hearsay." Thus a witness is a person who makes a statement that is "testimonial" by nature. Based on this definition, the Court held that the Confrontation Clause bars "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." Brian claimed that his son, Nathan, was such a witness...

The doctrine of standing is said to vindicate the separation of powers guaranteed by the structure of the Constitution. But “separation of powers” is not monolithic, and the Supreme Court has used standing doctrine to promote at least three separation-of-powers functions for the courts: (1) hearing only cases possessing sufficient concrete adversity to make them susceptible of judicial resolution; (2) avoiding questions better answered by the political branches; and (3) resisting Congress’s use of citizen suits—and therefore Congress’s conscription of the courts—to monitor the compliance of the executive branch with the law.

Whatever the value of those goals, standing doctrine does not effectively serve them. Moreover, standing doctrine—because it is not an effective vehicle for vindicating, or even discussing, separation-of-powers goals—has helped paper over profound disagreements within the Court over the meaning of each of these separation-of-powers functions, disagreements that have persisted since the doctrine began to flourish in the 1960s.

In this Article, I outline the three functions of standing, the debates over the meaning of each function, and the failings of the doctrine in each. I explain the problems caused by the doctrine's failure, positing that criticisms of the doctrine emerge in part from its use in the service of goals it cannot satisfy. I then suggest that these functions deserve more analysis than they receive in the impoverished context of standing analysis, recommend a dramatic scaling back of standing as a tool for separation-of-powers functions, and put forward as an alternative a vibrant abstention doctrine that would place separation-of-powers issues in the foreground. By adopting these recommendations, the Court can stem accusations that it uses standing doctrine for disingenuous purposes, provide clearer guidance for the lower courts, and more transparently realize the separation-of powers functions it seeks to promote. 

Despite the frequent rhetoric celebrating the generalist judge, do judges really practice the generalist ideal? This Article empirically tests this question by examining opinion assignments in the federal courts of appeals from 1995-2005. It reveals that opinion specialization is a regular part of circuit court practice, and that a significant number of judges indeed specialize in specific subject areas. The Article then assesses the desirability of opinion specialization. Far from being a mere loophole in court operating procedures, opinion specialization turns out to be an important feature of judicial practice that could increase judicial expertise without incurring many of the costs commonly associated with specialized courts.

Soft law consists of rules issued by lawmaking bodies that do not comply with procedural formalities necessary to give the rules legal status yet nonetheless influence the behavior of other lawmaking bodies and of the public. Soft law has been much discussed in the literatures on international law, constitutional law, and administrative law, yet congressional soft-lawmaking, such as the congressional resolution, has received little attention. Congressional soft law affects behavior by informing the public and political institutions about the intentions and policy preferences of Congress, which are informative about future hard law as well as of Congress's view of the world, and thus relevant to the decision making of various political agents as well as that of the public. Congressional soft law is important for a range of topics, including statutory interpretation and constitutional development. Other types of soft law—international, constitutional, and judicial—are compared.

This Article introduces a theory of legislative threats that not only pierces the fundamental construction of the legal system as a social regulatory institution but, more fundamentally, shows that the conventional wisdom on the role of the legal system in achieving and maintaining social order cannot explain how modern social control actually works. Contrary to received wisdom, the theory demonstrates that the threat of legislation—rather than legislation itself—plays a remarkable role in controlling behavior, in creating and setting incentives, and in maintaining social order.

Conceptually, legislative threats encompass threats that legislators exert on target entities—including banks and financial institutions, manufacturing corporations, professions, industrial sectors and trade bodies, universities and other public institutions, and federal agencies and U.S. states—according to which the legislator will exercise her legislative power and enact adverse legislation to regulate the conduct in question unless the threat recipients modify their conduct in line with the legislator's demands. Implicit in the threat is the inverse promise that the legislator will forgo the threatened legislation if, and only if, threat recipients duly meet these demands. The Article examines ten case studies drawn from diverse areas of social policy, which demonstrate both the pervasive use of threats and their formidable regulatory capacity. The Article also offers an analytic taxonomy that delineates the conceptual boundaries of legislative threats and enhances the precision of the analytic inquiry: this taxonomy includes explicit, implicit, and anticipatory legislative threats.

The Article borrows tools and insights from the field of game theory to model the strategic interaction between legislators and target firms as a noncooperative game. This model yields clear and insightful predictions regarding the inducement effect of legislative threats—namely, the capacity of legislative threats to induce target entities to modify their behavior so as to avert the risk and consequences of the threatened legislation. The inducement effect, it is shown, depends on: (i) the credibility condition—namely, whether threat recipients believe that the threat is credible or, rather, mere "cheap talk"; and (ii) the effectiveness condition—that is, whether the perceived probability that the threatened legislation will be enacted into law is sufficiently high. The analysis also demonstrates how legislators' commitments, reputation, and motivations affect the credibility of threats and, consequently, their inducement effect on the conduct of target firms.

Because threats are often directed towards groups as a whole (rather than to a single firm), the Article explains the counterintuitive effects of strategic interaction within groups on compliance with such threats (giving special attention to homogenous or heterogeneous as well organized or unorganized ones). In this respect, the Article develops the claim that compliance with legislative threats is, essentially, an informal political bargain in which a legislator barters the non-use of legislative power (with respect to a particular issue) in return for firms' commitment to change their conduct. Thus, by focusing on bargaining in the shadow of legislative threats, the Article identifies two important, interrelated effects: (i) exerting legislative threats elicits valuable information from target entities, which in turn reduces transaction costs, facilitates efficient regulatory bargaining, and decreases the contractual incompleteness of the regulatory bargain; and (ii) regulatory bargaining provides an opportunity to craft superior measures that are necessary to effectively address the issues initially targeted by the legislator's threat.

Overall, legislative threats encompass a powerful, innovative mechanism that legislators and regulators frequently employ as a means for exercising their institutional mandate to control social conduct and effect public policy. The emergence and prevalence of legislative threats therefore appear to be driven by the unprecedented functional challenges that modern legislators confront as they try to maintain social order in a highly dynamic social reality. Hence, this spontaneous solution seems to have emerged as a response to the functional limits of the law and the systemic failures of lawmakers. Further, the ever increasing use of legislative threats represents a trend towards second-order social control where legislators, rather than dictating first-order rules of conduct, opt for second-order rules designed to create the incentives necessary to induce firms and groups to devise desirable social control measures on their own. Inevitably, this trend is bound to diminish the extensive role that the regulatory state has traditionally performed in directing social and economic life and, at the same time, increase the power of groups. 

A sociology professor is sitting in his office one day when he receives an unsolicited call from a representative of a large corporation facing a devastating punitive damages award. The caller says that the corporation is "exploring . . . whether it's feasible to get something published in a respectable academic journal, talking about what punitive damage awards do to society, or how they're not really a very good approach." The caller explains, "[t]hen, in [the corporation's] appeal, we can cite the article, and note that professor so-and-so has said in this academic journal, preferably a quite prestigious one, that punitive awards don't make much sense."1 The professor was William Freudenburg and the corporation was Exxon, which contacted Freudenburg and a host of other scholars in the wake of its appeal of a $5 billion punitive damages verdict arising from the Exxon Valdez oil spill off the coast of Alaska.

This practice of soliciting and then funding "for-litigation" research is not unique to Exxon. A host of other groups, including corporations and conservative think tanks with corporate underwriters, continue to fund research for the purpose of presenting their findings to courts in order to discredit jury verdicts that awarded punitive damages against them.2 This kind of hired-gun research would be problematic even if the results were accurate, because as the Supreme Court has recently acknowledged, it creates an appearance of bias.3 But even more troubling is the fact that prominent scholars have discredited this research by showing that numerous industry-funded law review articles are methodologically flawed...

Recent judicial and scholarly treatment of the Confrontation Clause pays remarkably little attention to confrontation's purposes. This would not be particularly problematic if the confrontation right reduced to a mechanical rule. If, for example, the clause meant simply that out-of-court statements are inadmissible at trial whenever the declarant is not on the stand and subject to cross-examination, courts could easily administer the right without knowing anything of its purposes. But the clause has never been reduced to such a clean-cut categorical, and courts administering the right have generally had to balance competing interests rather than adjudicate by formula.

The problem with interest balancing is that it risks being unprincipled, and that problem has plagued the U.S. Supreme Court's confrontation jurisprudence. The bulk of that jurisprudence owes to the twenty-four-year reign of Ohio v. Roberts, under which a hearsay statement could be introduced at trial whenever the declarant was unavailable and the statement had "adequate indicia of reliability." Because there is no principled way to determine whether a statement has adequate indicia of reliability, the Roberts test produced inconsistent results...

A generation ago, Harvard law professor Frank Michelman advanced an influential and provocative vein of scholarship theorizing the content and justiciability of constitutional welfare rights. Michelman's writings, which endure as the most insightful and imaginative work in this area, sought to anchor the Supreme Court's welfare rights jurisprudence in a comprehensive theory of distributive justice, in particular John Rawls's theory of justice as fairness.

In this Article, I reappraise Michelman's seminal work and argue that his effort to ground the adjudication of welfare rights in a comprehensive moral theory ultimately confronts intractable problems of democratic legitimacy. My thesis is that the legitimacy of judicial recognition of welfare rights depends on socially situated modes of reasoning that appeal not to transcendent moral principles for an ideal society, but to the culturally and historically contingent meanings of particular social goods in our own society. Informed by the central themes of Michael Walzer's

Spheres of Justice, I argue that judicial recognition of welfare rights is best conceived as an act of interpreting the shared understandings of particular welfare goods as they are manifested in our institutions, laws, and evolving social practices. On this account, the existence of a welfare right depends on democratic instantiation in the first instance, typically in the form of a legislated program, with the judiciary generally limited to an interstitial role. Further, because the shared understandings of a given society are ultimately subject to democratic revision, courts cannot fix the existence or contours of a welfare right for all time. So conceived, justiciable welfare rights reflect the contingent character of our society's collective judgments rather than the tidy logic of a comprehensive moral theory.

In developing my thesis, I consider two objections: first, that the judicial role I propose is inherently conservative, and second, that it carries an intolerable risk that judges, in the name of interpreting society's values, will impose their own values on society. Using various Supreme Court opinions as examples, I show that both dangers can be avoided when courts employ constitutional doctrine in a dialogic process with the legislature to ensure that the scope of welfare provision democratically reflects our social understandings.

This Article sheds new light on the controversial doctrine of corporate criminal liability and other forms of collective sanctions. Critics contend that the use of criminal law to target business entities is undesirable given the disastrous consequences for firms convicted of misconduct, as graphically illustrated by the unraveling of the accounting firm Arthur Andersen. At the same time, the threat of going out of business is commonly perceived as providing firms with powerful incentives to contain misconduct. In this Article, we challenge the conventional view concerning the deterrence value of corporate criminal liability. Specifically, we show that harsh entity-level penalties might discourage monitoring for misconduct and undermine compliance incentives within professional firms. We also identify the conditions under which civil fines might enhance deterrence. Our analysis has implications for entity criminal liability and collective sanctions more generally. We call for greater reliance on purely financial corporate penalties and provide a deterrence-based justification for modifying the existing doctrine for holding firms criminally liable. We also explain why prohibiting law and accounting firms from organizing as limited-liability entities might be unwise.

Trade secret law is a puzzle. Courts and scholars have struggled for over a century to figure out why we protect trade secrets. The puzzle is not in understanding what trade secret law covers; there seems to be widespread agreement on the basic contours of the law. Nor is the problem that people object to the effects of the law. While scholars periodically disagree over the purposes of the law, and have for almost a century, they seem to agree that misappropriation of trade secrets is a bad thing that the law should punish. Rather, the puzzle is a theoretical one: no one can seem to agree where trade secret law comes from or how to fit it into the broader framework of legal doctrine. Courts, lawyers, scholars, and treatise writers argue over whether trade secrets are a creature of contract, of tort, of property, or even of criminal law. None of these different justifications has proven entirely persuasive. Worse, they have contributed to inconsistent treatment of the basic elements of a trade secret cause of action and uncertainty as to the relationship between trade secret laws and other causes of action. Robert Bone has gone so far as to suggest that this theoretical incoherence indicates that there is no need for trade secret law as a separate doctrine at all. He reasons that whatever purposes are served by trade secret law can be served just as well by the common law doctrines that underlie it, whichever those turn out to be.4

In this Article, I suggest that trade secrets can be justified as a form, not of traditional property, but of intellectual property (IP). The incentive justification for encouraging new inventions is straightforward. Granting legal protection for those new inventions not only encourages their creation, but enables an inventor to sell her idea. And while we have other laws that encourage inventions, notably patent law, trade secrecy offers some significant advantages for inventors over patent protection. It is cheaper and quicker to obtain, since it doesn't require government approval, and it extends to protection of types of business and process information that likely would not be patentable.

The presence of an estimated 11.5 million undocumented immigrants in the United States, of which an estimated 7.2 million are working, has become a flashpoint in the emerging national debate about immigration. Despite the fact that immigrants often accept jobs and working conditions that no citizens seem willing to undertake, this country has responded with hostile state initiatives and federal legislative efforts that not only fail to recognize their contributions, but also penalize many aspects of their daily existence.

When an employer, wittingly or unwittingly, hires an undocumented worker, a question arises regarding the extent to which labor and employment statutory protections extend to undocumented workers. In analyzing this question, courts are forced to address the interplay between immigration and employment statutes and their respective underlying policy rationales. Prior to 2002, courts confronting these issues developed a body of law that harmonized these two distinct areas of jurisprudence, finding, in many contexts, that undocumented workers were entitled to statutory protections in the workplace. This body of law shifted in 2002 when the United States Supreme Court decided Hoffman Plastic Compounds, Inc. v. NLRB and found that back-pay for undocumented workers under the National Labor Relations Act (NLRA) was foreclosed by federal immigration policy. Since the Hoffman decision, lower courts have struggled to define the parameters of the case, and, while the jurisprudence is still evolving, many courts have limited Hoffman's reach and found workers entitled to seek legal remedies for workplace violations under a variety of statutes.

Have U.S. government lawyers, including military attorneys, designed policies with the "goal of separating . . . lawyers from their clients" at Guantánamo? Have these government lawyers "worked . . . hard to take out the adversary lawyers at Guantánamo?" Are government policies unethically interfering with the responsibilities of defense counsel for the detainees? Are there special difficulties for military defense attorneys?

These are some of the ethics questions panelist Professor David Luban of the Georgetown University Law Center sought to address at a conference on the American legal profession sponsored by Stanford University in March of 2008. The Stanford Law Review published his expanded views under the title Lawfare and Legal Ethics in Guantánamo.

The purpose of this Response is to assess critically Professor Luban's effort and, in key areas, dispute his inferences and conclusions. In particular, we hope to add the perspective of military lawyers to this important subject. In doing so, we will not, however, debate all of the substantive issues of law that Professor Luban's Article touches upon. Thus, for example, we will not discuss the extent of habeas rights following the Supreme Court's decision in Boumediene v. Bush or the architecture of the Military Commissions Act of 2006. Nor will this Article advocate for Guantánamo per se, as we share the almost universal agreement of a need for an alternative to the detention center. Nor do we intend to be apologists for torture or any other illegality committed by anyone.

FEC v. Wisconsin Right to Life, Inc. (WRTL) is the Supreme Court's latest attempt to extricate grassroots advocacy by nonprofit corporations from the morass of political broadcast restrictions under the Bipartisan Campaign Finance Reform Act (BCRA). As with the many cases preceding it, the standard pronounced by the Court in WRTL is deceptively straightforward: a political broadcast is an "electioneering communication" that may be proscribed "only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate." The Court held this axiom true notwithstanding the identity of the advertisement's sponsor because "the corporate identity of a speaker does not strip corporations of all free speech rights [under the First Amendment]." The question the Court should have addressed is whether the nonprofit corporate identity of a speaker entitles such corporations to speech rights under the Petition Clause rather than the Free Speech Clause of the First Amendment.

The Framers thought that nonprofit corporations were entitled to exemptions based upon their status as nonprofits. During the First Congress, a nonprofit Quaker corporation seeking to abolish slavery led Congress to consider whether the First Amendment of the United States Constitution permitted the group to rely upon mass media and public opinion to effect grassroots advocacy through electoral pressure. Although Congress was deeply divided on the slavery question, Congress's failure to proscribe the Quakers' grassroots lobbying efforts suggests that they believed that the Petition Clause of the First Amendment protected the Quakers' actions because providing for nonprofit corporate political speech necessarily favored the general welfare of the United States...

Whether a limitation is jurisdictional or not is an important but often obscure question. In an article published in Northwestern University Law Review, I proposed a framework for courts to resolve the issue in a principled way, but I left open the next logical question: what does it mean if a rule is characterized as nonjurisdictional? Jurisdictional rules generally have a clearly defined set of traits: they are not subject to equitable exceptions, consent, waiver, or forfeiture; they can be raised at any time; and they can be raised by any party or the court sua sponte. This jurisdictional rigidity has led courts and commentators to overlook the fact that nonjurisdictional rules need not be the mirror inverse but may instead have attributes commonly associated with jurisdictionality. A nonjurisdictional rule might, for example, be "mandatory," meaning that it is subject to waiver or forfeiture, but if properly raised by the party for whose benefit it lies, it has the jurisdictional-like attribute of being immune to equitable exceptions. This Article is the first to take a hard look at nonjurisdictional rules and, particularly, "mandatory" rules. It first argues that they have an important institutional role to play in our procedural system. It then shows that, in practice, mandatory but nonjurisdictional characterizations may help explain a number of perplexing doctrines. As an example, the Article demonstrates how such a characterization can help reconcile the convoluted doctrine of state sovereign immunity. Ultimately, the Article suggests that a greater appreciation for mandatory rules both can benefit the procedural system and can broaden our view of what salutary roles nonjurisdictional rules can play.

It is not surprising that virtually all analyses of the Supreme Court stress the crucial role played by the swing, pivotal, or median Justice: in theory, the median should be quite powerful. In practice, however, some are far stronger than others. Just as there are “super precedents” and “super statutes”—those that are weightier or more entrenched than others—there are “super medians”—Justices so powerful that they are able to exercise significant control over the outcome and content of the Court’s decisions.

Conventional wisdom holds that Justices accumulate power by virtue of their personality, methodological approach, or even background characteristics. But our analysis suggests the opposite. Using sophisticated theoretical tools and systematically developed data, we demonstrate that the strength of the median has less to do with who occupies the center seat than with those Justices who sit close to the center. When median Justices are ideologically remote from their nearest colleagues, they will emerge as super medians. They will find themselves on the winning side of cases, breaking ties throughout the Term, and authoring opinions in key cases. But when medians are ideologically proximate to their closest colleagues, they will be far less dominant.

This analysis has important implications for historical understandings of the Court, for identifying the best strategies for attorneys arguing before the Justices, and for predicting whether new appointees will affect the direction of the Court’s decisions. We provide advice for advocates, as well as Presidents and senators contemplating judicial appointments, and identify plausible nominees for future Republican and Democratic administrations.

How fragile a thing, law.

Not long ago, the notion that Americans could be seized off the streets, arrested, and jailed without probable cause might have seemed laughable. The power to incarcerate on mere suspicion or executive say-so belonged to dictatorships. "We allow our police to make arrests only on 'probable cause,'" we used to be told; "[a]rresting a person on suspicion, like arresting a person for investigation, is foreign to our system."

But in 2002, the President of the United States claimed and exercised the power to designate an individual, including an American citizen seized on American soil, an "unlawful enemy combatant"—and to imprison him on that basis, without probable cause and with limited if any judicial review.

Not long ago, it was possible to believe that the government could intercept Americans' telephone calls only with probable cause and, absent exigent circumstances, judicial authorization. As late as 2004, the President declared: "Now, by the way, any time you hear the United States Government talking about wiretap, it requires—a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so. It's important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution."

These statements, it turned out, were not true...

It seems odd that despite the torrent of writing on emergencies and the law after 9/11, no one has systematically examined the view of emergencies held by our greatest judge. Perhaps the problem is that Justice Holmes has so often been subdivided along doctrinal lines. There is the Holmes of free speech law, represented by the majority opinion in Schenck v. United States and by the dissents in Abrams v. United States and Gitlow v. New York. There is the Holmes of property and takings law, represented by the majority opinion in Pennsylvania Coal Co. v. McMahon. There is the Holmes of due process law, represented by the dissents in Lochner v. New York and Tyson & Bro. v. Banton. And no one much talks about the Holmes opinions first upholding and then invalidating emergency rent control, Block v. Hirsh and Chastleton Corp. v. Sinclair, or about the opinion upholding emergency executive detention in Moyer v. Peabody. In what follows, part of my aim is to suggest that what doctrine has put asunder, a focus on emergencies can reunite. Emergencies are a central theme of Holmes's jurisprudence, one that cuts across doctrinal categories and clarifies theoretical puzzles.

My central suggestion is that Holmes's judicial and extrajudicial writings, in their best light, implicitly suggest a coherent account of emergencies, law, and constitutional adjudication. I will call this account the epistemic theory of emergencies, with the caveat that I use "theory" not in any rigorous way but just to indicate that Holmes tended to approach questions of emergency powers with a distinctive set of prejudices. We will see that, quite characteristically, Holmes was suggestive but not systematic about his theoretical premises. Despite the ambiguities, however, it is possible to reconstruct a Holmesian account of emergencies that is both plausible and (I hope) theoretically fresh.