Articles

In this Article, Professors Henry Hansmann and Ugo Mattei analyze the functions served by the law of trusts and ask, first, whether the basic tools of contract and agency law could fulfill the same functions and, second, whether trust law provides benefits that are not provided by the law of corporations. The authors’ analysis is motivated in part by the increasing interest in the trust, a familiar feature of common-law jurisdictions, in a number of civil law countries, and in part by the important role that trusts, for example pension and mutual finds, have come to play in capital markets. The authors conclude that the important contribution of trust law lies not in its well-recognized role of ordering, via default rules of contract, the relationships among parties to the trust; rather, the principal benefit of trust law lies in its ordering of relationships between these parties and third parties with whom they deal, relationships that cannot be rearranged easily by contract. Particularly, trust law allows the parties to the trust to partition off a discrete set of assets for separate treatment in relationships formed with creditors. The essential role of the trust, therefore, is to perform a property law-like, rather than a contract law-like, function. Moreover, the trust provides flexibility in organizational structure unavailable under even the more liberal business corporation statutes. The authors close by noting the convergence of trust and corporate law and questioning whether the roles performed by the two organizational types could just as well be served by a single legal form.

The apparent tension between judicial review and the democratic process—what Alexander Bickel dubbed the “countermajoritarian difficulty”—has been the focal point of modern constitutional scholarship. At the same time, however, scholars have rarely examined the origins of the countermajoritarian difficulty. In this Article—the first of a three-part series—Professor Friedman undertakes such an examination. Although countermajoritarian criticism of the Supreme Court has surfaced to some extent throughout our nation’s history, Professor Friedman’s historical analysis identifies four factors that tend to presage the prominence of such criticism at any given time. By studying criticism of the Court during Jeffersonian Democracy, the Age of Jackson, and in the wake of the Dred Scott decision, he argues that an essential, but often overlooked, factor is the extent to which the Court’s decisions are regarded as binding—not only upon the parties to the case at bar, but upon future litigants and the other branches of the state and national government as well. Thus, Professor Friedman contends, when the Court is acting during a time of perceived (and actual) judicial supremacy, countermajoritarian criticism will flourish. In the latter two Articles in this series, Professor Friedman will address the responses of the political branches to the emergence of judicial supremacy and the eventual rise of the “countermajoritarian difficulty” as the central problem of constitutional scholarship.

It is rare that an issue of fundamental importance to copyright litigation goes wholly unaddressed. Yet that rare situation applies to the question of how courts should treat affirmative defenses raised by “related” defendants, i.e., those who are claimed not to have committed the infringement itself (the “primary” defendants) but who are nonetheless sought to be held responsible on the theories of vicarious liability or contributory infringement. Should those defenses inure to the benefit solely of the defendant who pleads them? Or should they be evaluated in the context of the primary claim of infringement, and thus radiate outward for the benefit of all defendants in the action? Although legions of cases confront such vicarious defenses, they do so in a wholly uncritical fashion—some adopt the former approach, others the latter; their unifying point is that they fail to articulate any basis for drawing the distinction. Neither do the scholarly commentaries treat this issue, notwithstanding that it would seem to be essential to sound progress in the field. The case law’s failure to address this disparity would give rise to no problems if only everyone’s intuition invariably agreed as to which cases fit into which categories. Recently, however, I found myself for the first time ever disagreeing with how a particular court evaluated the affirmative defense of a related defendant. The case in question is Religious Technology Center v. Netcom On-Line Communications Services, Inc., 907 F. Supp. 1361 (N.D. Cal. 1995), which rejected the primary defendant’s fair use defense, and then when confronting the related defendant’s summary judgment motion recalibrated the entire fair use equilibrium with respect to the circumstances of that new defendant. To evaluate the wisdom of that court’s treatment of the vicarious fair use defense, it is necessary to take several gigantic strides backwards and to articulate a framework for how related defendants may assert their affirmative defenses, whether personally or globally. Happily, on a recent archaeological romp, I encountered some ancient judicial opinions in which resolution to these issues emerges full-blown from the judicial brow. I hereby present them unedited.

In 1996 Congress passed two laws, the Antiterrorism and Effective Death Penalty Act of 1996 and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, which substantially increased the likelihood that permanent residents will be deported from the United States for criminal convictions. The deportation provisions of these 1996 laws are now being applied retroactively to immigrants who could not or would not have been deported under the law in place at the time the immigrants were convicted for their offenses. Noting the potential injustice of this change in the rules by which immigrants were expected to conduct their lives, Professor Morawetz explores the constitutionality of the retroactive application of these new deportation schemes. Rather than relying upon a traditional ex post facto analysis, however, Professor Morawetz examines how the retroactive application of these laws may offend the Due Process Clause as it has been interpreted and applied in a body of Supreme Court case law addressing economic legislation. The plenary power doctrine alone, Professor Morawetz argues, does not bar the courts from testing the retroactive application of these deportation provisions according to the substantive due process standard enunciated by the Court. In fact, courts may be forced to address the constitutionality of the deportation provisions due to jurisdictional restrictions contained in the 1996 laws. After analyzing the history and text of the 1996 legislation, Professor Morawetz concludes that it would be unconstitutional to apply retroactively many, if not all of these deportation provisions to immigrants whose conduct and convictions occurred prior to the implementation of Congress’s new scheme.

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.