Articles

In this Article, Professor Hartnett enters the longstanding debate over whether elected officials are obliged to follow the Supreme Court’s interpretation of the Constitution. Responding to a call by Professors Larry Alexander and Frederick Shauer for complete deference to judicial opinions–a stance echoed by a broad range of scholars, now including former antideference advocate Edwin Meese–Professor Hartnett attempts to identify serious flaws in this position. He maintains that because the scope of tie judicial role is narrowly limited to deciding cases and controversies, and not “pronouncing the law,” there is a profound distinction between judgments and opinions. Therefore, we should not confuse deference with obedience and grant the Supreme Court a monopoly on constitutional interpretation.

Louis & Myrtle Research Professor of Business and Law and Alene & Allen F. Smith Professor of Law, University of Michigan and Professor of Law, University of Michigan, respectively.

This Article draws on a rich array of deviant behavior in Russian enterprises to craft lessons for corporate governance theory. First, Professors Fox and Heller define corporate governance by looking to the economic functions of the firm. Based on this definition, they develop a typology that comprehensively shows all the channels through which bad corporate governance can inflict damage on a country’s real economy. Second, they explain the causes of Russian enterprise fiascoes by looking to the particular initial conditions prevailing at privatization-untenable firm boundaries and insider allocation of firm shares-and the bargaining dynamics that have followed. This focus offers a new perspective for a comparative corporate governance literature derived from United States, Western European, and Japanese models. The analytic tools created in this Article can inform pressing debates across contemporary corporate law, ranging from the theory of the close corporation to the viability of “stakeholder” proposals.

Law Clerk to Judge Alex Kozinski of the United States Court of Appeals for the Ninth Circuit. A.B., 1996, Harvard College; M.Phil., 1997, Cambridge University; J.D., 2000, Yale University.

Again and again in notorious criminal trials, courts neglect significant public interests by transferring the trial out of the community in which the crime was committed. The acquittal of the officers who shot Amidou Diallo reflects but the latest of a number of high-profile verdicts in which the change of venue undermined the verdict’s legitimacy, particularly within the community victimized by the crime. American law always has presumed that jurors must be drawn from within the victimized community in order to permit the jury to fulfill its representative and adjudicative functions. Local jurors stamp the community’s judgment on the verdict, permit the trial to serve as an outlet for community concern, and interpret ambiguous statutory terms in light of the common sense of the community. These essential jury functions were understood by the Founders, yet they wholly are absent from the prevailing law governing change of venue motions. In this Article, Steven Engel argues that the public enjoys a constitutional right to adjudicate criminal trials locally. He first examines a series of cases in the 1980s where the Supreme Court recognized that the public enjoys a right of access to criminal proceedings premised on the tradition of public access, the public interest in publicity, and the link between the right and established constitutional values. He then suggests that the public’s “vicinage right” grows from the same soil as does the public’s right of access, has long-standing roots in our legal tradition, continues to serve important public policies, and is implicit in other constitutional doctrines protecting the jury right. Engel concludes that recognizing such a public right would encourage courts to explore alternatives to transfers that would preserve the defendant’s right to an impartial jury without damaging the community interests implicit in the trial by jury.

Assistant Professor of Law, University of Arkansas at Little Rock. B.A., 1976, M.S., 1978, J.D.,1988, University of Miami; LLM., 1995, Columbia University.

Scientific evidence is an inescapable facet of modern litigation. The Supreme Court, beginning with the seminal case of Daubert v. Merrell Dow Pharmaceuticals, Inc., and continuing with General Electric Co. v. Joiner and Kumho Tire Co. v. Carmichael, has instructed federal judges to evaluate the scientific validity of such evidence in determining the evidence’s admissibility. In this Article, Professor Erica Beecher-Monas argues that many judges ignore the science component of their “gatekeeping” duties, focusing instead on rules of convenience that have little scientific justification. As a result, she demonstrates that judges reject even scientifically uncontroversial evidence that would have little trouble finding admissibility under the pre-Daubert “general consensus” standard and admit evidence that is scientifically baseless. Such faulty analysis of scientific evidence deprives litigants of intellectual due process from judges and undercuts the proper functioning and credibility of the judicial system. Beecher-Monas contends that understanding certain basic principles underlying all fields of science will enable judges to make better admissibility decisions. Based on the language of science and criteria scientists use to assess validity, as well as the Supreme Court’s requirements in Daubert, Joiner, and Kumho Tire, Beecher-Monas proposes a five-step framework for sound analysis of scientific evidence Size then demonstrates the usefulness of the heuristic in two cases where applying the heuristic would have changed the outcome dramatically. The framework proposed in this Article will allow triers of science to make scientifically justifiable admissibility assessments, and in so doing will give litigants in cases involving scientific evidence the intellectual due process they deserve.

John A. Garver Professor of Jurisprudence, Yale Law School. B.A., 1973, Davidson College; M.A., 1974, Harvard University, J.D., 1978, Yale University.

Arguments against equal rights for gay men, lesbians, bisexuals, and transgendered people have shifted from, “Those are bad people who do sinful, sick acts,” to “A progay reform would promote homosexuality.” Professor Eskridge’s article presents a history of this rhetorical shift, tying it to the rise of a politics of preservation by traditionalists seeking to counter gay people’s politics of recognition. Eskridge also shows how modern antigay discourse has become sedimented, as arguments are layered on top of (but never displace) each other. Evaluating the various forms no promo homo arguments can take, he maintains that the most obvious versions are not plausible, and that the most plausible are not constitutional. This archaeology of no promo homo discourse has interesting ramifications for constitutional theory and doctrine. Among then, as Eskridge concludes, is the way in which the channeling function of law not only changes group rhetoric, but also group identity, and helps the state “manage” polarizing culture clashes.

Assistant Professor, Widliam H. Bowen School of Law, University of Arkansas at Little Rock; Adjunct Assistant Professor of Law, Columbia University; B.A., 1989, McGill University, M.A., 1992, Institut d’Etudes Politiques de Paris/McGill University; LL.B., 1994, University of Toronto; LL.M., 1993, Columbia University.

Following the 1994 Rwandan genocide, national and international trials set out to encourage national reconciliation, promote peace, punish perpetrators, foster a culture of human rights, and effect justice. In this Article, Professor Mark Drumbl questions the ability of these trials to achieve these goals and suggests they may in fact aggravate ethnic identify politics, thereby threatening Rwanda’s long-term stability. He argues that the highly interdependent yet dualist nature of Rwandan society, together with the widespread level of participation in and victimization by the genocide, create a situation where accountability for the violence and the deterrence of future violence can be pursued more effectively through the restorative cultivation of shame, rather than through the retributive imposition of guilt. Although criminal sanction usually attaches to deviant conduct, participation in genocide in Rwanda was not particularly deviant nor was it an individualized, pathological transgression. Professor Drumbl asks whether there might be times and places where collective wrong doing needs to be exposed and not hidden by the law’s preference for individual fault. Despite the concerns that ought to be emerging from the Rwandan experience, international lawyers continue to push-with significant degrees of success-for selective criminal prosecution as a preferred, and potentially exclusive, response to mass atrocity. In contrast, he suggests that creating presumptions in favor of criminal trials may preempt the supervening inquiry about the suitability of those trials to the afflicted society. Professor Drumbi concludes that policy responses to mass atrocity should be founded upon contextual inquiries, not driven by globalitarian or legalistic agendas, and should recognize the uniqueness of each incident of mass atrocity and the uniqueness of the reconstruction process that should follow, instead of flattening that uniqueness. This may lead to a preference for flexible, polycentric responses within and outside of what may be customarily identified by the West as the “law.”

Professor of Law, Fordham University. J.D., 1985, Harvard University.

In this Article, Professor Diller examines the tremendous changes in the administrative structure of the welfare system that have occurred since 1996. The new administrative model emerging from welfare reform eschews reliance on rules and instead invests ground-level agency personnel with substantial discretion. This shift redistributes power between welfare recipients and administrators. Central authorities continue to maintain control by channeling the discretion that ground-level officials exercise in order to achieve particular outcomes. This channeling takes place through a variety of means, including performance-based evaluation systems and efforts to redefine the institutional culture of welfare offices. These techniques are part of a broad trend in public administration that seeks to make government agencies function like entrepreneurial organizations. This new model raises serious questions of public accountability. In the new system of welfare administration, critical policy chokes are reflected in incentive and evaluation systems rather than formal rules. As policy decisions are made in ways that are less visible, there are fewer opportunities for public input. Moreover, in the new regime the efficacy of administrative hearings as a means of holding agencies accountable to recipients is diminished. Professor Diller suggests several possible means of facilitating public participation and fair treatment in this area. He concludes by urging that scholars, policymakers, and advocates focus their attention on developing new mechanisms to provide effective public participation in administrative policymaking and implementation.

In this Article Michael Simons examines the ways in which the federalization of crime can be controlled. Simons argues that prosecutorial discretion is the most important variable in the federalization process and that controlling prosecutorial discretion is the key to controlling federalization. He presents the Child Support Recovery Act as a model for how prosecution guidelines for federal criminal statutes can provide such control Federalization of criminal child support enforcement has been successful because federal prosecutors have exercised discretion in a manner consistent with the concerns expressed by the bench and the academy about federalization. Simons concludes by exploring how such guidelines would prevent the implementation of other criminal statutes from usurping state authority, overwhelming the federal courts, and treating individual defendants unfairly.

Upon surveying antitrust enforcement pursuant to Section 2 of the Sherman Act, Thomas Piraino concludes that the standard for determining violations has become muddled and confusing. He proposes a new standard to assist courts in distinguishing beneficial from harmful conduct; one that focuses on the monopolist’s substantive competitive purpose. Under that standard, conduct should be illegal under Section 2 if it makes no economic sense other than as a means of perpetuating or extending monopoly power. Piraino illustrates the benefits of this proposed standard by applying it to the Microsoft litigation.

In this Article, Professor Anne Poulin explores the role of standby counsel appointed to assist pro se defendants in criminal cases. Many courts and attorneys assume that acting as standby counsel entails less work than serving as lead counsel and that an active standby counsel would threaten the defendant’s right to selfrepresentation. Professor Poulin argues instead that a properly functioning standby counsel actually shoulders a greater burden than normal, following the case from pretrial procedures through sentencing, and not only providing assistance when the defendant asks, but also remaining alert for issues that the defendant missed. Professor Poulin concludes that a standby counsel must act as a shadow counsel, preparing the case as full as if she were the lead counsel.