Articles

City services are conventionally understood as publicly provided consumer goods, and cities are currently organized under local government law in a way that enables people to shop for these consumer goods by voting with their feet. Metropolitan residents who can afford to do so are therefore able to locate in a city with high quality city services while, simultaneously, limiting the taxes they pay for these services by excluding the poor not only from the city but from eligibility to use the services themselves. In this Article, Professor Frug argues that this privatized conception of city services has become a major ingredient in fostering the division of America’s metropolitan areas into neighborhoods of privilege and of want, a division that is all too often marked by lines of race, ethnicity, and class. He calls for replacing the prevailing consumer-oriented vision of city services with an alternative designed to promote what he calls “community building.” Focusing specifically on the widespread desire for good schools and die pervasive fear of crime, he proposes that city services become organized not as a means to separate and divide the metropolitan population but as a mechanism for expanding the capacity of metropolitan residents to live in a diverse society. Doing so, he says, involves opening public schools throughout the region to diversity and making prevention, rather than escape; the predominant strategy for dealing with crime.

For more than a century, judges and commentators have sought to determine the proper meaning of the Self-Incrimination Clause of the Fifth Amendment . Although the Supreme Court during this period has expanded dramatically the scope of protection afforded by the Clause with regard to self-incriminatory oral statements, the Court has retreated steadily from its 1886 decision in Boyd v. United States, which had provided full-scale constitutional protection to self-incriminatory documents. In this Article Professor Nagareda draws upon the text of the Fifth Amendment, the content of related constitutional guarantees, and recent scholarship on the history of the privilege against self-incrimination to argue for a revival of the Fifth Amendment holding of Boyd. He concludes that the constitutional prohibition upon compulsion of a person “to be a witness” against himself is best understood as synonymous with the bar upon compulsion of a person “to give evidence” against himself found in state sources contemporaneous with the framing of the Bill of Rights. Such a reading not only supports the holding of Boyd but, more broadly, serves to clarify the relationship between the Fifth Amendment (as a categorical ban against the compelled giving of incriminatory evidence) and the Fourth Amendment (as a regulation of the unilateral taking of such evidence by government agents). At the same time, Professor Nagareda’s reading serves to underscore the textual support for much of modem self-incrimination jurisprudence including, most significantly, the use immunity doctrine.

Better environmental results depend less on fine tuning theories of environmental federalism than on improving regulatory performance. Simply put, how we regulate is more important than where we regulate. Current environmental policy efforts fall short for a number of reasons: technical and information shortcomings, “structural” or jurisdictional mismatches, and public choice distortions. In this Article, Professor Daniel Esty argues that a theory of optimal environmental governance must seek to address each of these sources of regulatory failure.

Feminists have achieved significant antiviolence legal reforms in the areas of domestic abuse, sexual harassment, and rape over the past three decades. These reforms, however, have reinforced old borders between the traditional categories of violence and prostitution and have constructed new borders by maintaining the distinction between worthy and unworthy women. Despite these flaws, the law reform efforts have the capacity to transform the legal and social meaning of prostitution. By adopting an approach that transcends consent or coercion and private or public, Professors Fellows and Balos use the concept of respectability to introduce an analytically powerful framework for rethinking prostitution as a paradigm of degradation and as a practice of inequality. First, the authors explain the role these dichotomies play in maintaining social hierarchies through the discourse of respectability. Next, the authors situate the relationship among prostitution, racial and gendered cultural practices, and rights of citizenship within the degradation/respectability framework. The authors use the concept of respectability to critique previous reform efforts and to propose a possible civil rights remedy that is not dependent on the traditional concepts of consent and coercion and individual liberty. In this way, they avoid polarizing the debate and create a genuine opportunity for significant legal reform in the area of prostitution. Ultimately, the authors elaborate a theory of citizenship that undermines the degeneracy/respectability dichotomy and that does not depend on an idea of worthiness.

In this Article, Professor Thompson addresses the constitutional and policy implications of racially motivated searches and seizures. He begins by showing that the Supreme Court’s most recent pronouncement on the subject, Whren v. United States, which has been treated by scholars as a new direction in the Court’s Fourth Amendment jurisprudence, is actually a natural and inevitable consequence of jurisprudential, rhetorical, and narrative choices the Court made thirty years ago in Terry v. Ohio. Analyzing the language of Terry, Professor Thompson demonstrates the way in which the Court removed race from the case and explains that the Court was forced, as a result, to create an alternative narrative to explain its judgment. He then traces the effects that Terry has had on the Court’s treatment of race in subsequent decisions. In Part II of the Article, Professor Thompson challenges the assumptions that underlie the Court’s analysis of racially motivated searches and seizures in Terry and subsequent decisions. First, he uses social science data to demonstrate that the Court’s conception of “racially neutral” searches and seizures overlooks compelling evidence of the hidden effects of race on individuals’ perceptions and judgment. He then draws upon the history of the Fourth Amendment to demonstrate that the Court’s treatment of racially motivated searches and seizures runs counter to the intentions of the framers of the Amendment. Professor Thompson argues that the framers of the Fourth Amendment specifically intended to protect disfavored minority segments of the population from selective governmental use of search and seizure powers. Finally, in Part III, Professor Thompson proposes a variety of doctrinal and nonjudicial remedies designed to effectuate the original intent of the Fourth Amendment by deterring racially motivated searches and seizures.

In recent years, legal scholars dissatisfied with the behavioral assumptions of the rational actor model have increasingly turned to the findings of cognitive psychologists and decision theorists to enhance the accuracy of efficiency analysis. Jon Hanson and Douglas Kysar review those findings in this Article, concluding that scholars have been well justified in incorporating the behavioralist account of human behavior into law and economics. Nevertheless, Hanson and Kysar argue that those scholars simultaneously have failed to take the findings of behavioral research to their logical conclusion. Using the scholarly application of behavioralist insights to products liability theory as an example, the authors demonstrate that legal scholars thus far have treated cognitive anomalies as relatively fixed and independent influences on individual decisionmaking. Rather than such an exogenous analysis, Hanson and Kysar advocate an endogenous examination of behavioralist findings that allows for internal, dynamic effects of cognitive biases within the decisionmaking model. By recognizing that cognitive anomalies influence not only the behavior of biased decisionmakers but also the incentives of other economic actors, Hanson and Kysar reveal the possibility of market manipulation–that is, the possibility that market outcomes can be influenced, if not determined, by the ability of one actor to control the format of information, the framing and presentation of choices, and, more generally, the setting within which market transactions occur. Again using the field of products liability theory as an example, the authors argue that such market manipulation will come to characterize consumer product markets; powerful economic incentives will drive manufacturers to engage in practices that, whether consciously or not, utilize non-rational consumer tendencies to influence consumer preferences and perceptions for gain. The authors conclude by previewing the evidence from their companion article that demonstrates the seriousness of the problem of market manipulation and the need for corrective legal devices such as enterprise liability.

In recent years, scholars and policymakers have rediscovered the concept of industrial districts–spatial concentrations of firms in the same industry or related industries. In this Article, Professor Gilson examines the relationship between high-technology industrial districts and legal infrastructure by comparing the legal regimes of California’s Silicon Valley and Massachusetts’s Route 128. He contends that legal rules governing employee mobility influence the dynamics of high technology industrial districts by either encouraging rapid employee movement between employers and to startups, as in Silicon Valley, or discouraging such movement, as in Route 128. Because California does not enforce post-employment covenants not to compete, high technology firms in Silicon Valley gain from knowledge spillovers between firms. These knowledge spillovers have allowed Silicon Valley firms to thrive while Route 128 firms have deteriorated. Professor Gilson concludes with three cautionary notes. First, the success of Silicon Valley firms suggests that per capita firm value will be greater where intellectual property protection is somewhat diluted, in contrast to tie traditional law and economics prescription that emphasizes full protection of intellectual property. Second, the doctrine of inevitable disclosure, as developed in recent trade secret cases, threatens to undermine the advantages conferred by California’s legal regime and should be considered with caution. Third, other regions may not be able to emulate California’s success simply by replicating its legal rules. Rather, policymakers in other states should consider the characteristics of local industries, weighing the advantages to those industries of knowledge spillovers against the reduced incentives for initial innovation that result from decreased employer intellectual property rights.

Our society increasingly perceives information as an owned commodity. Professor Benkler demonstrates that laws born of this conception are removing uses of information from the public domain and placing them in an enclosed domain where they are subject to an owner’s exclusive control. Professor Benkler argues that the enclosure movement poses a risk to the diversity of information sources in our information environment and abridges the freedom of speech. He then examines three laws at the center of this movement: the Digital Millennium Copyright Act, the proposed Article 2B of the Uniform Commercial Code, and the Collections of Information Antipiracy Act. Each member of this trio, Professor Benkler concludes, presents troubling challenges to First Amendment principles.

Despite periodic outcries in response to particular outrages, it remains notoriously difficult to prosecute police brutality. In this form-shattering Article, Professor Troutt attributes much of this difficulty to the overwhelming power of the stories mainstream American culture tells about the encounters leading to police violence. In this piece, Professor Troutt lays bare these authority narratives–particularly their racialized dimension–and demonstrates how they have been used to defeat, if not silence, the counternarratives related by victims and their representatives.

Professor Troutt focuses on the limited, though important, role that fictional counterstories can have in challenging the epistemological apparatus by which police brutality is supported. To illustrate this point, he offers a fictionalized narration of the events leading up to one of the most significant police brutality prosecutions of this century, Screws v. United States. Using his story as a starting point, Professor Troutt moves on to two broader discussions: First, he compares his account with the dominant narratives of the Screws case, adopted either explicitly or implicitly by almost all of the legal and jurisprudential actors who participated in that case. Second, he examines the theoretical justifications many of his colleagues offer for the use of storytelling in legal writing, highlighting the ways in which his narrative illustrates the possibilities for such storytelling and identifying several additional benefits not emphasized in the existing literature. He concludes with a discussion of the most famous police brutality case of recent times, the Rodney King beating case, Koon v. United States. In his discussion of Koon, Professor Troutt demonstrates the persistence of prevailing cultural narratives of police brutality cases, in part by drawing attention to the similarities in the ways in which the Screws and Koon cases were portrayed by the government and perceived by the public. In the end, through both argument and demonstration, Professor Troutt makes a strong case for the importance of literary fiction as a tool for challenging the core of dominant beliefs about race, crime, and social hierarchy implicit in reigning authority narratives.

This Article is the first comprehensive analysis of the complicated voting rules of Chapter 11. Under these rules, only the debtor may propose a plan of reorganization during a lengthy exclusivity period, creditors are placed in classes which vote separately on the plan, voting is based on a bicameral system with both majority and supermajority requirements, and a plan may be confirmed only if, among other things, every nonconsenting creditor receives at least as much as it would have if the firm were liquidated under Chapter 7. Chapter 11’s rules are idiosyncratic and difficult to understand, yet the literature on these rules is sparse. Several scholars have argued that it should be replaced with a system that avoids voting and relies on a more market-driven valuation process. To date however, no one has tried to understand how all of the voting rules fit together. In this article, Professors Kordana and Posner expand on existing bargaining models to consider bargaining with multiple creditors, paying particular attention to difficulties posed by imperfect information, and analyze all of the major voting rules in Chapter 11. The authors utilize a positive analysis to achieve an increased understanding of the existing bankruptcy system and its costs and benefits, an essential prerequisite to reform of Chapter 11.