Volume 62

It is a great pleasure to return once again to Stanford Law School, where in 1964 a J.D. degree launched me into a seven year legal career as a California Deputy Attorney General and what, to this point, has been an almost thirtyeight year career as a judge.

The class that I most enjoyed in law school was Constitutional Law, and I was fortunate to have Gerald Gunther as my professor. The educational experience provided by that class no doubt had a substantial bearing upon my decision to enter the field of public law.

Stimulating and comprehensive as Professor Gunther's course was, the subject of state constitutional law was rarely if ever mentioned here or elsewhere. Ultimately United States Supreme Court Justice William Brennan and my late colleague California Supreme Court Justice Stanley Mosk wrote extensively on the subject, but the focus has remained even to this day almost exclusively on the federal aspects of constitutional law...

Since World War II, a number of countries abroad have adopted constitutions or amended these documents to include social and economic rights. These so-called positive rights embrace guarantees to goods and services such as public schooling, health care, and a clean environment. Even where moored to the text of a constitution, social and economic rights remain controversial. Among the criticisms, skeptics argue that constitutional provisions of this sort are ineffectual because courts cannot meaningfully enforce them against the government; positive rights are “just words” that can neither end inequality nor prevent poverty, and instead perversely hurt those they are intended to benefit. This Article examines the efficacy of positive constitutional rights from a different perspective: it considers the relation between the social and economic rights that are set forth in a subnational constitution and the development of private law doctrines of contract, torts, and property. Specifically, the Article examines the positive rights clauses that are included in some state constitutions in the United States and asks whether they can and should influence the state’s common law decision making.

Unlike the Federal Constitution, which consistently has been interpreted as excluding affirmative claims to government assistance, every state constitution in the United States—like many constitutions abroad—contains some explicit commitment to positive rights. The New York Constitution, for example, provides that “[t]he aid, care and support of the needy are public concerns and shall be provided by the state and by such of its subdivisions, and in such manner and by such means, as the legislature may from time to time determine.” Other state constitutional clauses contemplate provision of public schooling; others guarantee respect for individual “dignity” or the pursuit of “happiness,” both of which may include a substantive component; still others recognize a worker’s right to unionize or guarantee a clean environment. State courts have treated some social and economic provisions as justiciable claims against the government, but others only as aspirational statements that cannot be judicially enforced...

Many nation states have a two-tiered constitutional structure that establishes a superior state and a group of subordinate states that exercise overlapping control of a single population. The superior state (or what we will sometimes call the “superstate”) has a constitution (a “superconstitution”) and the subordinate states (“substates”) have their own constitutions (“subconstitutions”). One can call this constitutional arrangement “sub-national constitutionalism,” or, for short, “subconstitutionalism.”

Americans understand subconstitutionalism as federalism. The national government controls the superstate; each of the fifty states is a substate. Constitutions exist at both levels. Other states, including Germany, Australia, Austria, Argentina, Brazil, Ethiopia, Switzerland, Mexico, Russia, Venezuela, Malaysia, and Canada, also have federalist or quasi-federalist systems with two-tiered constitutional structures. The integration of Europe has produced a quasi-federalist system. EU members have retained their constitutions even as they increasingly submit to a European government with its own constitution...

The year is 1993 and the Hawaii Supreme Court has just declared—as a matter of state constitutional law—that the state prohibition of same-sex marriage constitutes gender discrimination. Within a few years, thirty-five states enacted laws prohibiting the recognition of same-sex marriages and Congress, responding "to a very particular development in the State of Hawaii," enacted the Defense of Marriage Act. In Hawaii, voters overwhelmingly approved a state constitutional amendment authorizing the legislative prohibition of same-sex marriage. For Bill Eskridge, the Hawaii decision was disastrous, "provok[ing] the biggest antigay backlash since the McCarthy era." For Andy Koppelman, however, Hawaii "put the issue of same-sex marriage on the national agenda" and, in so doing, "was a triumph for gays."

Fast forward to 2003 and the Massachusetts Supreme Court's ruling that, under the Massachusetts Constitution, same-sex couples have a right to marry. Throughout the nation, Republicans seized upon this issue, using it to bolster their prospects in the 2004 elections. President Bush called for a constitutional amendment banning same-sex marriage; congressional leaders pushed both for that amendment and for legislation stripping federal courts of jurisdiction in same-sex marriage cases; state officials backed constitutional amendment proposals in thirteen states. And while there is some dispute about whether the same-sex marriage issue was decisive in President Bush's reelection or in Republican victories in Congress, there is little question that the Massachusetts decision did not sit well with a majority of Americans—as revealed both in public opinion polls and in voter approval of all thirteen same-sex marriage ban proposals. In Massachusetts, however, same-sex marriage carried the day—not only did 2004 efforts to derail the court's decision fail, Massachusetts voters rewarded opponents of a proposed constitutional ban on same-sex marriage (reelecting all opponents while ousting some proponents of the ban).

The story of marriage equality under state constitutions is quite mixed. The story begins when the Hawaii Supreme Court in Baehr v. Lewin indicated that strict scrutiny should be used for the prohibition of same-sex marriage on the ground it was gender discrimination. The court explained that it was solely a person’s sex that kept him or her from marrying someone of the same sex. The Hawaii Court remanded the case to the lower court for the application of strict scrutiny under the Hawaii Constitution’s use of this test for gender discrimination. Before this could occur, though, Hawaii voters amended their constitution to prevent marriage equality.

The Vermont Supreme Court found a right to same-sex civil unions, but not marriage for gay and lesbian couples. The Massachusetts Supreme Judicial Court in a historic ruling interpreted its state constitution to create a constitutional right to marriage equality. It rejected that civil unions could substitute for the right of gays and lesbians to marry. The New York Court of Appeals, though, rejected marriage equality under its constitution in a four-to-two decision…

California is ungovernable. The state’s annual budget charade might give one the impression that its governor and legislature are to blame. But in truth, it is out of their hands. Decades of “ballot-box budgeting,” where voters pass taxing and spending legislation by citizen initiative, has put more and more of the state’s budget out of the legislature’s control. While estimates vary, somewhere between seventy-seven and ninety percent of California’s general fund is “set in stone before the Legislature and governor even start negotiating.” With an increasingly small slice of the decision-making authority left to elected representatives, it is difficult to argue that California is still a representative democracy.

This fundamental change in California’s form of government did not happen overnight. Instead, with every election came a new set of initiatives that slowly and gradually set aside pieces of the general fund until there was nothing left. There was no one fatal blow to representative democracy in California; it suffered death by a thousand cuts...

Two centuries after Marbury v. Madison, there remains a deep confusion about quite what a court is reviewing when it engages in judicial review. Conventional wisdom has it that judicial review is the review of certain legal objects: statutes, regulations. But strictly speaking, this is not quite right. The Constitution prohibits not objects but actions. Judicial review is the review of such actions. And actions require actors: verbs require subjects. So before judicial review focuses on verbs, let alone objects, it should begin at the beginning, with subjects. Every constitutional inquiry should begin with a basic question that has been almost universally overlooked. The fundamental question, from which all else follows, is the who question: who has violated the Constitution?

As judicial review is practiced today, courts skip over this bedrock question to get to the more familiar question: how was the Constitution violated? But it makes no sense to ask how, until there is an answer to who. Indeed, in countless muddled lines of doctrine, puzzlement about the predicates of constitutional violation follows directly from more fundamental confusion about the subjects...

Federal pleading standards are in crisis. The Supreme Court's recent decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal have the potential to upend civil litigation as we know it. What is urgently needed is a theory of pleading that can bring Twombly and Iqbal into alignment with the text of the Federal Rules of Civil Procedure and a half-century worth of Supreme Court precedent, while providing a coherent methodology that preserves access to the courts and allows pleadings to continue to play their appropriate role in the adjudicative process. This Article provides that theory. It develops a new paradigm—plain pleading—as an alternative to both notice pleading (which the pre-Twombly era was widely understood to endorse) and plausibility pleading (which many read Twombly and Iqbal to endorse). As a functional matter, this new paradigm is largely consistent with notice pleading, but it stands on firmer textual footing and avoids some of the conceptual problems that arise when notice is the exclusive frame of reference.

This approach is able to reconcile Twombly and Iqbal with pre-Twombly authority. Indeed, a careful reading of Twombly and Iqbal undermines the conventional wisdom that they require a stricter approach to pleading. First, Twombly and Iqbal did not overrule the most significant pre-Twombly authorities. The only aspect of prior case law that these decisions set aside was a misunderstood fifty-year-old phrase whose real meaning was never called into question. Furthermore, Iqbal's two-step analysis confirms that the problematic plausibility standard employed in Twombly and Iqbal is neither the primary inquiry at the pleadings phase nor a necessary one. The threshold issue is whether a crucial allegation in a complaint may be disregarded as "conclusory"; only then does the "plausibility" of an entitlement to relief become dispositive. While there remains some uncertainty about what conclusory means, authoritative pre-Twombly sources—the Federal Rules, their Forms, and Supreme Court decisions that remain good law—foreclose any definition that would give courts drastic new powers to disregard allegations at the pleadings phase.

The title of this Essay is somewhat misleading. First of all, by Supreme Court archives, I do not mean the official documents of the Supreme Court as an institution. Rather, my dispatch heralds from the archives of individual Justices who have deposited their papers in a variety of institutions, most notably the Library of Congress. Second of all, I am not actually writing from those archives. With a digital camera and a lot of memory cards, I have essentially reproduced the archives on my computer. As this nifty technology allows me to read my thousands of documents pretty much anywhere, I must confess: I am not, at this very moment, in the archives.

Metaphorically speaking, however, my title is accurate. This Essay is a dispatch from the archives in the sense that I am here to share a few finds I made in the Justices' papers that I imagine will be of interest to many a scholar of law and history. These finds consist of (1) portions of an early draft of Justice William O. Douglas's opinion in the 1972 vagrancy case of Papachristou v. City of Jacksonville; (2) memoranda between Justice Douglas and Justices William J. Brennan, Jr., and Potter Stewart about that opinion; and (3) a memo from Brennan to Douglas about Roe v. Wade. These documents—which I have reproduced below for your perusal—shed new light on several apparently disparate issues in constitutional law: the Supreme Court's use of void-for-vagueness doctrine, the social and constitutional history of vagrancy law, the possibility and contours of constitutional regulation of substantive criminal law, the relationship between Papachristou and Roe, and the development and conceptualization of fundamental rights. I am guessing that you are surprised to learn that previously untapped Supreme Court documents reveal links between this odd assortment of subjects. You are probably even more surprised to learn that the glue that holds it all together is vagrancy law. Vagrancy law, you ask? Vagrancy law, I say. But let me explain...

In a recent Article, Stanford Law School Professor Allen Weiner argues that the existing United Nations (U.N.) framework for authorizing the use of force adequately empowers the United States to deal with challenges presented by international terrorism and the proliferation of weapons of mass destruction (WMD). According to Professor Weiner, "the interests of the Permanent Members [of the Security Council (P5)] do not clash with respect to the goals of countering terrorism and WMD proliferation . . . ." Consequently, when the United States needs to use force to respond to either of these threats, it can rely on the U.N. Security Council to provide collective authorization. Professor Weiner thus concludes that there is no need to reform how the use of force is authorized under the U.N. Charter (Charter).

Professor Weiner's argument, if correct, would have important consequences. A world in which the P5 see eye to eye on terrorism and WMD nonproliferation would provide powerful opportunities for the United States to effectively deal with threats emanating from countries like Iran and North Korea, and would also allow for a more integrated approach to non-state actors like Al Qaeda and Hezbollah. Furthermore, the idea that the U.N. is capable of dealing with modern threats without reforming its process for authorizing the use of force has inherent appeal because there is still widespread disagreement on exactly what shape such reform would take and whether executing an agreed upon plan would be politically viable. Any meaningful reform is therefore still a long way from implementation...

This Note offers a normative critique of cost-benefit analysis, one informed by deontological moral theory, in the context of the debate over whether tort litigation or a non-tort approach is the appropriate response to mass harm. The first Part argues that the difference between lay and expert intuitions about risk and harm often reflects a difference in normative judgments about the existing facts, rather than a difference in belief about what facts exist, which makes the lay intuitions more defensible. The second Part considers how tort has dealt with this divergence between lay and expert perspectives. It also evaluates how tort's approach has differed from that of public law approaches to accident law, such as legislative compensation and risk regulation by administrative agencies. Ultimately, tort's ability to recognize the value of lay intuitions supports retaining the tort perspective as part of our societal arsenal of responses to risk and harm. This ability can also support a pro-tort perspective in two practical debates in the arena of tort law: that over preemption of tort law by administrative agency judgments, and that over access to tort recovery as part of a no-fault system.

"No taxation without representation" has lasting appeal as a political catchphrase. But the impact of the motto is limited if it is not accompanied by striking actions or persuasive arguments. In this Note, I examine the problems that American woman suffragists encountered when they tried to put "no taxation without representation" to use, both in the realm of action and the realm of debate. In short, suffragists had difficulties committing to a widespread tax resistance strategy; they were forced to admit that the taxation argument led logically only to taxpayer suffrage, not to universal suffrage; and they struggled with resulting uncertainty over the wisdom of using "no taxation without representation" rhetoric at all. I also show how these weaknesses were mitigated, to some extent, by the introduction of the federal income tax late in the game. This Note, therefore, explains why the taxation argument was often passed over by suffragists and is rarely studied in the secondary literature, while at the same time highlighting the fascinating historical role it played, nonetheless.

In the novel Sula, Toni Morrison describes a neighborhood known locally as the Bottom, where the black community lived. It was "the hilly land, where planting was backbreaking, where the soil slid down and washed away the seeds, and where the wind lingered all through the winter." We know such Bottoms. We have seen neighborhoods forsaken in the levees' breach, public housing blocks gaptoothed with boarded windows, and floodplain shantytowns for farmworkers. We know of homes on land scarred by contamination or dogged by natural adversity. But across the country are Bottoms of another, less familiar type. On the outskirts of small cities and incorporated suburbs across the country, hundreds of high-poverty neighborhoods of color lack rudimentary services like sewage systems, drainage, and streetlights. Integrated economically with city populations but excluded from participatory rights in city government, these unincorporated urban areas bear disproportionate numbers of landfills, municipal utility plants, and freeways that benefit urban populations but threaten local health and depress land values.

What to do with today's lost neighborhoods? It is the late dawn of the twenty-first century, when integration is stronger and civil rights laws are weaker, when local government budgets are dwarfed by demands. Suing local governments or lobbying them, two of the most important strategies of twentieth- century advocacy for social justice, have been weakened by judicial and political hostility to redistributive claims. Yet state and local government law retains malleability and promise. Laws governing the allocation of power among local agencies exert significant influence over unincorporated urban areas in particular and spatial polarization by race and class more generally.

In part a prescription for unincorporated urban areas specifically, in part an exploration of solutions for any problem of metropolitan inequality, Mapped Out of Local Democracy takes stock of today's tools. It argues for a new priority in metropolitan law and policy: state legislative reforms to empower and reshape county governments to represent regional interests and regional logic in intergovernmental negotiations. Strengthening counties to bargain with other local agencies over matters with redistributive consequences, like annexation, can bring an interlocal perspective to critical local decision making and create a promising corridor for addressing contemporary issues of urban inequality. By bringing counties—our most neglected, under-theorized layer of urban government—into sharper relief, this Article offers a new direction in state and local government law in order to seek progress on economic and racial polarization in America's cities.

This Article offers a general framework for applying the Fourth Amendment to the Internet. It assumes that courts will seek a technology-neutral translation of Fourth Amendment principles from physical space to cyberspace, and it considers what new distinctions in the online setting can reflect the function of Fourth Amendment protections designed for the physical world. It reaches two major conclusions. First, the traditional physical distinction between inside and outside should be replaced with the online distinction between content and non-content information. Second, courts should require a search warrant that is particularized to individuals rather than Internet accounts to collect the contents of protected Internet communications. These two principles point the way to a technology-neutral translation of the Fourth Amendment from physical space to cyberspace.

A puzzle is raised by cases of false confessions: How could an innocent person convincingly confess to a crime? Postconviction DNA testing has now exonerated over 250 convicts, more than forty of whom falsely confessed to rapes and murders. As a result, there is a new awareness that innocent people falsely confess, often due to psychological pressure placed upon them during police interrogations. Scholars increasingly examine the psychological techniques that can cause people to falsely confess and document instances of known false confessions. This Article takes a different approach, by examining the substance of false confessions, including what was said during interrogations and how the confession statements were then litigated at trial and postconviction. Doing so sheds light on the phenomenon of confession contamination. Not only can innocent people falsely confess, but all except two of the exonerees studied were induced to deliver false confessions with surprisingly rich, detailed, and accurate information. We now know that those details could not have likely originated with these innocent people, but rather must have been disclosed to them, most likely during the interrogation process. However, our constitutional criminal procedure does not regulate the postadmission interrogation process, nor do courts evaluate the reliability of confessions. This Article outlines a series of reforms that focus on the insidious problem of contamination, particularly videotaping interrogations in their entirety, but also reframing police procedures, trial practice, and judicial review. Unless criminal procedure is reoriented towards the reliability of the substance of confessions, contamination of facts may continue to go undetected, resulting in miscarriages of justice.

As with phrenology and the polygraph, society is again confronted with a device that the media claims is capable of reading our minds. Functional magnetic resonance imaging ("fMRI"), along with other types of functional brain imaging technologies, is currently being introduced at various stages of a criminal trial as evidence of a defendant's past mental state. This Article demonstrates that functional brain images should not currently be admitted as evidence into courts for this purpose. Using the analytical framework provided by Federal Rule of Evidence 403 as a threshold to a Daubert/Frye analysis, we demonstrate that, when fMRI methodology is properly understood, brain images are only minimally probative of a defendant's past mental states and are almost certainly more unfairly prejudicial than probative on balance. Careful and detailed explanation of the underlying science separates this Article from others, which have tended to paint fMRI with a gloss of credibility and certainty for all courtroom-relevant applications. Instead, we argue that this technology may present a particularly strong form of unfair prejudice in addition to its potential to mislead jurors and waste the court's resources. Finally, since fMRI methodology may one day improve such that its probative value is no longer eclipsed by its extreme potential for unfair prejudice, we offer a nonexhaustive checklist that judges and counsel can use to authenticate functional brain images and assess the weight these images are to be accorded by fact finders.

While the standing doctrine is one of the most widely theorized and criticized doctrines in U.S. law, its origins remain controversial. One revisionist view argues that New Deal progressive Justices purposely invented the standing doctrine to insulate administrative agencies from judicial review. Yet existing support for this “insulation thesis” is weak. Our Article provides the first systematic empirical evidence of the historical evolution of standing. We synthesize the theory and claims underlying the insulation thesis and compile a new database of every standing issue decided, along with all contested merits votes, by the Supreme Court from 1921-2006. To overcome conventional problems of haphazard case selection, we amass, read, and classify over 1500 cases cited in historical treatments of the doctrine, assembling a database of all standing issues contested. With modern statistical methods and this new dataset—comprised of 47,570 votes for 5497 unique issues and 229 standing issues—we find compelling evidence for one version of the insulation thesis. Before 1940, progressive Justices disproportionately deny standing to plaintiffs in cases that largely involve challenges to administrative agencies. After 1940, the political valence of the standing doctrine reverses: progressives uniformly favor standing. Justices Douglas and Black, in particular, track this evolution (and valence reversal) of the standing doctrine. While the evidence for liberal insulation is strong, the historical period of unanimously decided standing cases prior to the period of insulation does not support liberal invention per se. Our results challenge legal inquiries of what claims are traditionally amenable to judicial resolution and highlight the unintended consequences of judicial innovation.

In line with accepted theories of environmental law, many prominent environmental law scholars have dismissed the climate change plans of U.S. cities and other local governments, presuming that these efforts will have no more than a trivial effect on greenhouse gas emissions. Drawing upon economic theories, others find local “piecemeal” efforts not only ineffective, but also potentially harmful to the prospects for a successful national emissions reduction program. In contrast, this Article argues that local governments have core regulatory powers in domains that will prove critical to a comprehensive response to climate change. Following a trend in scholarship that moves away from rigid prescriptions for either centralized or decentralized environmental regulation, this Article envisions local governments as important players in a multilevel governmental effort that regulates greenhouse gas emissions from the bottom up and the top down.

Bankruptcy judges enjoy neither of the twin structural protections provided by Article III of the Constitution: life tenure and compensation that cannot be diminished. Yet, they exercise broad adjudicatory powers. This Article questions whether the conventional justifications for non-Article III tribunals should apply to the bankruptcy courts and offers alternative rationales for the current system of bankruptcy courts that are absent from the literature.

The first conventional justification for non-Article III tribunals—a balancing test crafted by the Supreme Court—holds that they may handle specialized matters whose substance is narrow and technical, with limited prospects for generating the political heat from which Article III is supposed to insulate the federal judiciary. But bankruptcy adjudication is not narrow and technical. Bankruptcy courts routinely decide matters covering a range of subjects as broad as the civil docket of the Article III district courts, often with the potential to spark considerable political interest. Bankruptcy cases may involve a specialized process, but their substance is not specialized.

The second conventional justification assumes that appellate review by Article III courts will be sufficient to check the power of a non-Article III tribunal. Bankruptcy cases, however, generate relatively few appeals, and those cases that do make it out of the bankruptcy courts to Article III courts face a variety of constraints as vehicles to control bankruptcy judges. Bankruptcy judges remain largely autonomous from the Article III courts that supposedly superintend them.

In spite of the inadequacy of these standard justifications, this Article makes a tentative case for non-Article III adjudication in bankruptcy. First, the autonomy of bankruptcy judges comes in part from the appointment process to the bankruptcy bench and their lack of promotion to the Article III courts. That autonomy gives them, paradoxically, a layer of insulation from outside political pressure that is the core value of Article III. Second, the process for appointing bankruptcy judges has created a bench that remains oriented toward an audience—the bankruptcy bar—that holds in highest esteem professionalism,creativity, and nonideological adjudication, which are also key values associated with Article III.

In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), the Supreme Court held that the Federal Constitution provides a cause of action in damages for violations of the Fourth Amendment by individual federal officers. The so-called “Bivens” cause of action—initially extended to other constitutional provisions and then sharply curtailed over the past two decades—has been a subject of controversy among academics and judges since its creation. The most common criticism of Bivens—one that has been repeated in different venues for thirty years—is that the Court’s individual liability model, in which the offending officer is personally liable in damages, should be abandoned in favor of a governmental liability model akin to respondeat superior liability.

Commentators base their criticism of the individual liability model on two empirical assumptions: (1) Bivens suits are almost never successful; and (2) the defense of qualified immunity, available only to individuals, is a nearly insuperable barrier to plaintiffs’ prevailing in Bivens claims. On this account, a move to the governmental liability model will ensure adequate compensation and deterrence while removing a substantial barrier to plaintiffs’ success. These empirical claims about the general failure of Bivens suits and the explanation for that failure have never been tested. This Article corrects that oversight by offering the results of the first detailed empirical study of the determinants and outcomes of Bivens litigation. Based on data collected from cases filed in five district courts from 2001-2003, this Article concludes that the truths that scholars and judges have taken as a given are unsupported. Bivens claims succeed at a much higher rate than previously thought, especially compared to other civil rights litigation, and the defense of qualified immunity rarely plays a role in the outcome of Bivens litigation. These data call into question the given wisdom about the characteristics of Bivens litigation, and undermine the policy proposals that have occupied the field of Bivens scholarship.

Imagine the following scenario: A police officer is investigating a majordrug trafficking ring. She obtains a wiretap on the cell phone of the suspected kingpin of the organization. The wiretap enables her to overhear conversations between the top target of the wiretap and several other people in the drug ring. Before the wiretap produces sufficient evidence to support arrest and prosecution of the kingpin, it yields evidence of various crimes involving lower-level drug runners.

Traditionally, this officer would face a dilemma. On the one hand, she could arrest the low-level targets based on the evidence she had already obtained, but in the course of prosecuting them she would be forced to reveal the existence of the wiretap to these low-level targets, who would likely inform the kingpin, which would likely prevent her from obtaining any additional evidence against her top target. Alternatively, she could sit idly by while known criminal activity occurred, perhaps at immediate risk to the safety of the community, in order to keep the wiretap secret and continue building her case against the kingpin.

The “hand off” is a law enforcement technique that seeks to resolve this dilemma by enabling what I will call “midstream prosecutions.” A hand off occurs when information from an initial investigation such as a wiretap is “handed off” from one police unit to another. The receiving unit conducts a subsequent and so-called independent investigation, and the subsequent investigation becomes the basis of a criminal prosecution during which the initial investigation is never revealed to the defendant or to the court. The hand off therefore allows police to conduct midstream prosecutions during ongoing covert investigations without “blowing their cover.”

In the aftermath of the Supreme Court’s 2007 opinion in Bell Atlantic v. Twombly, judges and civil procedure scholars throughout the country divided on the opinion’s significance. In just twenty-four pages, Twombly uprooted the Conley v. Gibson standard for evaluating motions to dismiss a lawsuit under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Under Conley, a court could dismiss a complaint only if it “appear[ed] beyond doubt that the plaintiff c[ould] prove no set of facts in support of his claim which would entitle him to relief.” That standard had governed motions to dismiss for fifty years, and embodied the liberal notice-pleading regime envisioned by the framers of the Federal Rules of Civil Procedure.3 But no more. Faced with a suit alleging that almost every major telephone company had engaged in anticompetitive conduct amounting to an antitrust conspiracy, the Court introduced a new system of “plausibility” pleading designed to curb discovery abuse and weed out frivolous lawsuits. Now, plaintiffs had to include in their complaints “enough factual matter” to “nudge[] their claims across the line from conceivable to plausible . . . .”

In responding to the opinion, some judges agreed with Justice Stevens’s view in dissent that Twombly “rewr[o]te the Nation’s civil procedure textbooks and call[ed] into doubt the pleading rules of most of its States,” whereas others viewed Twombly fundamentally as an antitrust case and assumed that the case’s effects would begin and end there. At the same time, scholars fractured over the opinion’s normative desirability; some viewed the opinion as a necessary bulwark against abusive practices by plaintiffs’ attorneys, whereas others saw it as going too far in assisting defendants. Almost immediately, Twombly became one of the most frequently cited cases in pleadings, even as judges split on how to apply its many strands.11 In the midst of all this confusion, perhaps only one thing was settled: Twombly’s reach was still unclear.

This Article offers a new way of thinking and talking about government secrecy. In the vast literature on the topic, little attention has been paid to the structure of government secrets, as distinct from their substance or function. Yet these secrets differ systematically depending on how many people know of their existence, what sorts of people know, how much they know, and how soon they know. When a small group of similarly situated officials conceals from outsiders the fact that it is concealing something, the result is a deep secret. When members of the general public understand they are being denied particular items of information, the result is a shallow secret. Every act of state secrecy can be located on a continuum ranging between these two poles.

Attending to the depth of state secrets, the Article shows, can make a variety of conceptual and practical contributions to the debate on their usage. The deep/shallow distinction provides a vocabulary and an analytic framework with which to describe, assess, and compare secrets, without having to judge what they conceal. It sheds light on how secrecy is employed and experienced, which types are likely to do the most damage, and where to focus reform efforts. And it gives more rigorous content to criticisms of Bush administration practices. Elaborating these claims, the Article also mines new constitutional territory—providing an original account of the role of state secrecy generally, as well as deep secrecy specifically, in our constitutional order.

About half, probably more, of all patented inventions in the United States are never commercially exploited. Even many of the most commercially significant inventions take decades to come to market. In this Article, I contend that the patent system is substantially retarding the commercialization of valuable inventions. This result should not come as a surprise—the dominant framework undergirding patent law, the “reward” theory, is premised on providing incentives for nascent inventions, not commercialized end-products. Although more recent “prospect” theories properly recognize the importance of patent protection for commercializing inventions, they incorrectly conclude that strong, real property-like rights for inventors are necessary to spur robust commercialization—sometimes, weaker rights are preferable. In analyzing these dominant theories of patent law, I conclude that it is effectively impossible to adjust the timing, duration, and scope of traditional patent rights in order to encourage substantial commercialization. In place of reforming the traditional patent, whose quid pro quo is the disclosure of new and non-obvious information, I propose a new “commercialization” patent, granted in exchange for the commitment to make and sell a substantially novel product. Decoupling the invention and commercialization functions of patent law into dual rights would yield more commercialization than the existing system, without unduly decreasing competition, encouraging rent-seeking, or increasing administrative costs.

In 2006, thousands of soccer fans showed up to the World Cup game between the Netherlands and the Ivory Coast wearing pants in the colors of the Dutch national team. The pants had been given out as promotional gifts by a beer company. FIFA, the governing body of international soccer, objected. It claimed trademark rights in the team colors, and giving out pants in those colors was in FIFA‟s view "ambush marketing" that was likely to confuse those who saw (or even those who wore) the pants into thinking that the soccer team had sponsored the pants. And in FIFA‟s view, not only was giving out the pants illegal, but individuals wearing them were falsely suggesting some affiliation with the Dutch national team. Prohibited from wearing the pants into the stadium, more than one thousand fans dutifully took their pants off and cheered the Dutch team to victory in their (largely orange) underwear. This was Europe, after all, and it was an important match.

Trademark law centers its analysis on consumer confusion. With some significant exceptions, the basic rule of trademark law is that a defendant’s use of a mark is illegal if it confuses a substantial number of consumers and not otherwise.

As a general matter, this is the right rule. When it works well, trademark law facilitates the workings of modern markets by permitting producers to accurately communicate information about the quality of their products to buyers, thereby encouraging them to invest in making quality products, particularly in circumstances in which that quality wouldn’t otherwise be apparent. If competitors can falsely mimic that information, they will confuse consumers, who won’t know whether they are in fact getting a high quality product. Indeed, some consumers will be stuck with lemons...

This Article plays off the title of Thomas Grey’s well-known article, The Disintegration of Property, which argued in part that the ceaseless consensual fragmentation and recombination of property rights revealed some inner incoherence of the underlying private property institutions. I take the opposite position and treat this supposed disintegration of private property as evidence of its robust nature, not only for land but for all forms of intellectual property. Low transaction costs facilitate the creation of efficient regimes of property rights. I use this framework to critique modern intellectual property rights cases that limit the use of injunctive relief in intellectual property cases, impose limits on the terms of private licenses of intellectual property, and compromise the protection that intellectual property receives against government confiscation. 

One common theme links these elements together. Once it is recognized that patents and copyrights should be subject to limited terms, it becomes possible to transfer most of the legal principles from the physical to the intellectual realm. Far from being dead, a unified system of property rights for tangible and intangible assets could be brought to health by intelligent legislative and judicial action.

The Supreme Court's recent decision in Pearson v. Callahan marked a turning point in a judicial experiment concerning § 1983 constitutional litigation, which began in 2001 with Saucier v. Katz. The experiment involved the doctrine of qualified immunity, an immunity from suit extended to state and local government officials (and to federal officials in Bivens actions) in § 1983 actions for monetary relief where it would not be "clear to a reasonable officer that his conduct was unlawful in the situation he confronted."

A court deciding a § 1983 action in which the defendant pleads qualified immunity faces two possible questions: (1) whether a constitutional right of the plaintiff was violated; and (2) whether that right was "clearly established" at the time the conduct occurred. If the court answers the first question “no,” the defendant prevails because the plaintiff has failed to successfully allege a constitutional violation. If the court answers the second question “no,” the defendant is entitled to qualified immunity, barring the plaintiff’s recovery. The question at the heart of the line of cases leading to Pearson is whether a court must confront the constitutional question regardless of the outcome of the “clearly established” qualified immunity prong, or whether a court may skip the substantive constitutional issue altogether when the answer to the “clearly established” prong supports granting qualified immunity.

The stakes are high because the difference between mandatory or discretionary sequencing may bear on the frequency with which courts address substantive constitutional rights questions, which in turn impacts the “rate” at which constitutional rights are “clearly established” through precedents. While the Supreme Court’s jurisprudence has spanned the spectrum from providing no guidance about sequencing, to suggesting it, to requiring it, and after Pearson, again to only suggesting it, there have been until recently no empirical studies that examined the relationship between the Supreme Court’s position on the qualified immunity sequencing issue and the behavior of lower courts resolving § 1983 claims...

The Fourth Amendment protects the “right of the people to be secure . . . against unreasonable searches and seizures,” but determining what this right means and how it should be vindicated has, to put it mildly, long been controversial. In fact, because of the “wide applicability of government intrusions, ranging from countless thousands of daily intrusions at airports, traffic stops, drug testing, traditional criminal law enforcement practices, regulatory intrusions[,] . . . and many other searches and seizures, the Amendment is the most commonly implicated and litigated part of our Constitution.” Perhaps the most contentious element in the controversy surrounding the Fourth Amendment is determining how to enforce it—whether by the exclusionary rule, which requires unlawfully obtained evidence to be suppressed from a criminal prosecution; a civil damages remedy; an administrative sanction; or some other means.

The remedial controversy surrounding the Fourth Amendment also implicates broader questions about the relationship between a right and its remedy, evidenced by the pair of quotes above. These questions are both abstract and practical. On the abstract side, Chief Justice Marshall’s “general and indisputable rule” from Marbury exhibits the deeply-held normative principle that when a right is declared it ought to be accompanied by an attendant remedy. Llewellyn affirms this principle by noting that the causal relationship also runs in the other direction: without a remedy, there is no right. On the practical side, Llewellyn’s comment underscores that what courts do, as opposed to what they say, is the effective regulator for the scope of a given right. That is, even if a court says a lot about the value of a right, the manner in which it vindicates that right is really what determines its value...

Reducing police misconduct requires substantial institutional reform in our nation’s police departments. Yet traditional legal means for deterring misconduct, such as civil suits under § 1983 and the exclusionary rule, have proved inadequate to force departmental change. 42 U.S.C. § 14141 was passed in 1994 to allow the Justice Department to sue police departments to force institutional reform. Scholars initially hailed § 14141 as a powerful tool for reducing unconstitutional police abuse. The Justice Department, however, has sued few police departments. This Article contends that § 14141’s greatest potential has been overlooked. Limited resources will always mean that § 14141 can be used to force reform on only a limited number of police departments. But § 14141 could also be used to induce reform in many more. This goal requires a § 14141 litigation strategy designed to motivate proactive reform in more departments than the Justice Department can sue. The key components of this strategy are a “worst-first” litigation policy that prioritizes suits against police departments with the worst indicia of misconduct, and a policy that grants a “safe harbor” from suit for police departments that voluntarily adopt best practice reforms. This Article also explains why this proactive § 14141 enforcement strategy would be more efficient at reducing police misconduct than current enforcement policies, proposals to reform § 14141 by adding private plaintiffs, and alternative mechanisms by which the federal government could regulate police department reform.

In the heat of the 2008 election season—following the new tradition of the 2000 and 2004 elections—candidates, political parties, and others filed new lawsuits practically every day over election law issues. The issues ranged from candidate ballot access to the allocation of voting machines by precinct to the accuracy of state voter registration databases. In mid-September 2008, two Ohio controversies garnered national attention. In one case, Republicans filed suit to block first-time Ohio voters from registering to vote and casting an early in-person absentee ballot at the same time during an apparent five-day statutory overlap between the dates for voter registration and for early voting. In another case, Republicans sued the Democratic Ohio Secretary of State, Jennifer Brunner, for her refusal to accept absentee ballot requests submitted by voters who filled out a form sent to them by the McCain campaign unless the voter had checked a box confirming the voter was qualified to vote. The box, mistakenly added by the McCain campaign, was not required under Ohio law.

My initial reaction to the lawsuits—before I had chance to examine the relevant Ohio statutes—was that Republicans should lose the first case and win the second. That is, I entered into the statutory analysis with a thumb on the scale in favor of voter enfranchisement, which could be overcome only by clear statutory language to the contrary or strong competing policy reasons. Eventually, the Ohio Supreme Court, relying on such a canon of construction favoring voters, indeed sided with the voters in both cases…

A revisionist consensus among corporate law academics has begun to coalesce that, after a century of academic thinking to the contrary, states do not compete head-to-head on an ongoing basis for chartering revenues, leaving Delaware alone in the ongoing interstate charter market. The revisionist view pushes us to consider how free Delaware is to act. Where and when would it come up against boundaries, punishments, and adverse consequences? When do other states (and Washington) constrain Delaware? Recent state corporate lawmaking helps us to define those boundaries in terms of potential state competition and to see that the critical actors are not other states’ lawmakers directly, but Delaware’s own corporate constituents who, if disgruntled, can induce other states to enact new laws. Moreover, analysis of previously unassembled chartering revenue data from Delaware’s Secretary of State’s office displays a vital dimension of state competition, once thought to be relatively unimportant, but that’s becoming increasingly powerful: Delaware’s tax base is eroding, and it’s eroding faster in the past decade or so than ever.

Delaware must move ever faster to replenish that erosion. The dynamism of American business interacts with even a lackluster state-based corporate chartering market to put powerful pressure on Delaware, whose business base is persistently eroding as firms merge, close, and restructure.

Covert policing necessarily involves deception, which in turn often leads to participation in activity that appears to be criminal. In undercover operations, the police have introduced drugs into prison, undertaken assignments from Latin American drug cartels to launder money, established fencing businesses that paid cash for stolen goods and for “referrals,” printed counterfeit bills, and committed perjury, to cite a few examples.

In each of these instances, undercover police engaged in seemingly illegal activity to gather evidence or to maintain their fictitious identities. Yet unless these acts are committed by “rogue cops” not authorized to participate in illegal activity, these activities aren’t considered crimes. Indeed, they are considered a justifiable and sometimes necessary aspect of undercover policing.

This practice of authorized criminality is secret, unaccountable, and in conflict with some of the basic premises of democratic policing. And to the extent that authorized criminality presents mixed messages about their moral standing, it undermines social support for the police. While the practice isn’t new, authorized criminality raises fundamental questions about the limits of acceptable police conduct and has been too long ignored…

Owning a stun gun is a crime in seven states and several cities. Carrying irritant sprays—such as pepper spray or Mace—is probably illegal in several jurisdictions. Even possessing irritant sprays at home is illegal in Massachusetts if you’re not a citizen, and in several states if you’re under eighteen (even if you’re sixteen or seventeen).

Yet in most of these jurisdictions, people are free to possess guns in the same situations where stun guns or irritant sprays are illegal. So deadly devices are fine. But say you have religious, ethical, or emotional objections to killing, or don’t want to risk accidentally killing an innocent bystander, or don’t want your children to potentially have access to a deadly weapon. Not wanting to kill, and knowing that stun guns and irritant sprays pose at most a very small risk of death, you get a stun gun (which over 198,000 civilians have apparently done) or an irritant spray. Then you’re a criminal.

In public places within some other jurisdictions, stun guns, irritant sprays, and firearms are equally banned. People there are entirely barred from defending themselves with any of the devices that are most effective for self-defense. That’s the rule in many Illinois towns, in Milwaukee as to concealed carrying, for foreign citizens in Massachusetts, and probably for eighteen- to twenty-year-olds outside the home in Connecticut and Memphis…