When the last American combat troops departed Iraq in December, they left behind a disordered democracy that may not survive, along with a great deal of ethical confusion. The invasion of Iraq in 2003 represented the apotheosis of “anticipatory” self-defense—the theory that the use of armed force can be justified to prevent an attack that “is neither occurring nor imminent, but nevertheless likely to occur in the foreseeable future.” According to the war’s critics, the failure to discover weapons of mass destruction illustrates the poverty of the theory and its heavy reliance on accurate intelligence. If this is so, then we are in for trouble, because the Obama Administration’s emphasis on targeted killing of terror suspects—what President Obama has called eliminating our enemies—is also a form of anticipatory self-defense. Indeed, as the administration continues to ratchet up its use of remote drone attacks, we really would seem to have entered what one observer has called the new age of preventive war. [...]

Although the Supreme Court has agreed to hear three suits challenging the 2010 health care reform legislation, it is not at all clear that the Court will resolve the constitutional questions at stake in those cases. Rather, the Justices may decide that a Reconstruction-era statute, the Tax Anti-Injunction Act (TA-IA), requires them to defer a ruling on the merits of the constitutional challenges until 2015 at the earliest. . . . Fortunately (at least for those who favor a quick resolution to the constitutional questions at stake in the health care litigation), there is a way for the Solicitor General to bypass the TA-IA bar . . . . Specifically, the Solicitor General can initiate an action against one or more of the fourteen states that have announced their intention to resist enforcement of the health care law, and he can bring this action directly in the Supreme Court under the Court’s original jurisdiction. Such an action would be a suit for the purpose of facilitating—not restraining—the enforcement of the health care law. Thus, it would open up an avenue to an immediate adjudication of the constitutional challenges. [...]

Two bills now pending in Congress—the PROTECT IP Act of 2011 (Protect IP) in the Senate and the Stop Online Piracy Act (SOPA) in the House—represent the latest legislative attempts to address a serious global problem: large-scale online copyright and trademark infringement. Although the bills differ in certain respects, they share an underlying approach and an enforcement philosophy that pose grave constitutional problems and that could have potentially disastrous consequences for the stability and security of the Internet’s addressing system, for the principle of interconnectivity that has helped drive the Internet’s extraordinary growth, and for free expression. [...]

Associated today with the theatre of war, the widespread domestic use of drones for surveillance seems inevitable. Existing privacy law will not stand in its way. It may be tempting to conclude on this basis that drones will further erode our individual and collective privacy. Yet the opposite may happen. Drones may help restore our mental model of a privacy violation. They could be just the visceral jolt society needs to drag privacy law into the twenty-first century.

Samuel Warren and Louis Brandeis knew what a privacy violation looked like: yellow journalists armed with newly developed “instantaneous photographs” splashing pictures of a respectable wedding on the pages of every newspaper. Their influential 1890 article The Right To Privacy crystallized an image of technology-fueled excess, which the authors leveraged to jump-start privacy law in the United States. [...]

In the next few weeks, the Supreme Court will decide whether to review the constitutionality of Arizona’s high-profile immigration enforcement effort, known popularly as S.B. 1070. Arizona’s law is simply the tip of the iceberg. State legislatures have passed immigration enforcement laws over the last few years at breakneck speed, and, generally speaking, have attempted to make life as uncomfortable as possible for undocumented immigrants. Controversy has ensued. The Arizona law received worldwide attention, international condemnations, and calls for an economic boycott of the state. Paradoxically, these state immigration laws come at a time when the Obama administration has aggressively pressed enforcement, setting all-time records for the removal of noncitizens from the United States, with nearly 400,000 people deported in fiscal year 2011. [...]

On November 4, 2011, Lehman Brothers’ creditors voted on Lehman Brothers’ liquidation plan, with approval from the bankruptcy court to follow on December 6, 2011. In the three years since the bankruptcy of Lehman Brothers, which was the largest bankruptcy filing in U.S. history, Congress enacted the Dodd-Frank Act to prevent the failure of another systemically important financial institution. Lehman Brothers’ bankruptcy offered a unique opportunity to understand the linkages among financial institutions and the broader economy, but few policymakers delved into the actual causes of the bank’s collapse. Most instead pointed to derivatives as the cause. This Essay offers a brief overview of some of the most persistent misconceptions regarding Lehman Brothers’ bankruptcy and the role that derivatives played in it. [...]

The December 2010 self-immolation of 26-year-old Tunisian Mohamed Bouazizi, a desperate response to the debilitating lack of economic opportunities for Tunisia’s youth and the pervasive sense of humiliation engendered by the state’s corrupt and degrading treatment of its citizens, tapped into deep popular frustration in Tunisia and throughout the Middle East. It sparked a series of uprisings that led to the ouster of authoritarian governments in Tunisia and Egypt, a civil war that ultimately brought down the Qaddafi regime in Libya, widespread public protests in Bahrain and Syria, and a virtual civil war in Yemen. The Arab Spring, as the moment has been dubbed, provides an important opportunity for Tunisians, Egyptians, Libyans, and others in the region to create new governing institutions and, more fundamentally, to redefine the nature of the relationship between the citizen and the state in the Arab Middle East. [...]

The concept of a sentencing commission as a mechanism for governance of a jurisdiction’s criminal justice system has achieved great prominence in recent years and been the subject of much important commentary. In light of California’s recent passage of A.B. 109, legislation that drastically overhauls the state’s sentencing and correctional systems, now is an ideal time to evaluate California’s adoption and implementation of the commission model.

Readers who are familiar with California criminal justice will pause quizzically at that last sentence, observing that the California Legislature has steadfastly refused to create a sentencing commission. But my argument here is that there is now, in effect, a California sentencing commission even if not by explicit law. Indeed, I will argue that collectively the branches of our state government have, whether intentionally or not, created a number of sentencing commissions. [...]