Articles

Congress increasingly has enacted cooperative federalism programs to achieve complex regulatory policy objectives. Such programs combine the authority of federal regulators, state regulators, and federal courts in creative and often pathmarking ways, but the failure of these actors to appreciate fully their respective roles threatens to undermine cooperative federalism’s effectiveness. In this Article, Professor Philip Weiser develops a coherent vision of how federal courts should enforce cooperative federalism regulatory programs. In particular, he relates the rise and purpose of cooperative federalism to the federal courts’ increased reluctance to make federal common law under the Erie doctrine and their greater deference to administrative agencies under the Chevron doctrine. Professor Weiser then applies this conception of cooperative federalism to the implementation of the Telecommunications Act of 1996, the most ambitious cooperative federalism venture yet, and shows how federal courts should exercise their authority in coordination with federal and state regulators to advance the Act’s goals.

The thought of a large biotech company holding an exclusive right to research and manipulate human genetic material provokes many reactions–from moral revulsion to enthusiasm about the possibilities for therapeutic advancement. While most agree that such a right must exist, debate continues over te appropriate extent of its entitlements and preclusive effects. In this Article, Professor Donna Gitter addresses this multidimensional problem of patents on human deoxyribonucleic acid (DNA) sequences in the United States and the European Union. Professor Gitter chronicles not only the development of the laiw in this area, but also the array of policy and moral arguments that proponents and detractors of such patents raise. She emphasizes the specific issue of patents on DNA sequences whose function has not fully been identified, and the chilling effect these patents may have on beneficial research. From this discussion emerges a troubling realization: While the legal framework governing “life patents” may be similar in the United States and the European Union, the public perceptions and attitudes toward them are not. Professor Gitter thus proposes a dual reform: a compulsory licensing regime requiring holders of DNA sequence patents to license them to commercial researchers, in return for a royalty keyed to the financial success of the product that tie licensee develops; and an experimental-use exemption from this regime for government and nonprofit researchers.

From 1869 to 1875, activists associated with the National Woman Suffrage Association, including Susan B. Anthony and Elizabeth Cady Stanton, argued that the United States Constitution guaranteed women’s right to vote. Adam Winkler argues that this movement–which the suffragists termed the “New Departure”–rested on an innovative theory of constitutional interpretation that would become the dominant mode of constitutional construction in the twentieth century. Now recognizable as “living constitutionalism,” the suffragists’ approach to constitutional interpretation was harshly critical of originalism–the dominant mode of nineteenth-century interpretation–and proposed to construe textual language to keep up with changing societal needs. This Article analyzes the intellectual currents that made plausible the suffragists’ embrace of an evolutionary interpretive methodology, traces the development of the suffragists’ approach as they fought for the franchise in Congress and in the courts, and reveals how radical suffragists encountered the obstacles of originalism at every turn. Correcting the error of constitutional historians who assert that living constitutionalism first emerged in the Progressive Era, this Article stakes a claim for recognizing woman suffragists as important innovators at the forefront of modern constitutional thought.

For nearly a century, the conventional wisdom has been that during the Lochner era, Supreme Court Justices failed to adhere to constitutional norms requiring deference to majoritarian decisions and inappropriately struck down laws by substituting their own views for those of legislative bodies. Recently, however, revisionist scholars have endeavored to rehabilitate Lochner-era judicial decisionmaking by demonstrating that those decisions were based soundly on established legal principles. In this Article–the third in a five-part series–Professor Barry Friedman calls into question both revisionist and conventional accounts of the Lochner era. After outlining the revisionist agenda and its effort to bestow “legal legitimacy” upon Lochner-era decisions, Friedman presents extensive historical evidence showing that popular opinion throughout the era saw judges as deciding controversial cases in illegitimate ways, creating novel constitutional rights, and acting on class biases. Revisionists also claim that Justice Holmes’s famous Lochner dissent was novel, and that his arguments regarding deference to majority will were adopted only after the fact by Progressive critics of the courts. But Friedman establishes that there was nothing novel to Holmes’s dissent; Justice Harlan said much the same in his, and both were part of a wide movement that criticized courts for interfering with the popular will. By juxtaposing the hue and cry over Lochner-era decisions with revisionist claims of doctrinal fidelity, Friedman concludes that the true test of whether controversial decisions such as Lochner will be accepted as legitimate is not simply whether such decisions are legally precedential, but whether the wider public perceives them to be “socially legitimate,” i.e., appropriate as a matter of policy given the necessities of the time.

In this Article, Professor Steven Clymer describes the problem created when police departments require officers suspected of misconduct to answer internal affairs investigators’ questions or face job termination. Relying on the Supreme Court’s decision in Garrity v. New Jersey, courts treat such compelled statements as immunized testimony. That treatment not only renders such a statement inadmissible in a criminal prosecution of the suspect police officer, it also may require the prosecution to shoulder the daunting and sometimes insurmountable burden of demonstrating that its physical evidence, witness testimony, and strategic decisionmaking are untainted by the statement. Because police internal affairs investigators decide whether to take and disseminate compelled statements from police officers, prosecutors are powerless to prevent the problem. Yet, as Professor Clymer shows, the Garrity doctrine as applied by lower courts, has an uncertain foundation. The Supreme Court never has addressed the full range of protections that courts often bestow on compelled statements, such as prohibitions on nonevidentiary and indirect evidentiary use. Furthermore, these stringent use restrictions are difficult to square with the less robust protection that courts afford coerced confessions and with the need to address police criminality effectively. While rejecting the proposition that the Court should overrule Garrity, Clymer argues that courts should relax prohibitions on collateral uses of compelled statements. Clymer also suggests that policymakers require police departments to use sanctions less severe than job termination to prompt police officers to answer questions during administrative investigations. Threats of lesser sanctions often will be sufficient to encourage police officers to answer and will do so without triggering Garrity immunity. This approach fairly balances the competing interests of police departments, police officers, and prosecutors in cases of alleged police criminality.

Illinois v. Wardlow, the Supreme Court’s most recent Fourth Amendment decision involving encounters between police and pedestrians, stands for a proposition that, at first glance, appears uncontroversial and commonsensical: If a citizen indicates a desire not to cooperate with a police officer, then that officer has “reasonable suspicion” to justify a limited search of the citizen. This Note argues, however, that the uncooperative citizen is, in many respects, symptomatic of a history of aggressive police activity. While the Fourth Amendment is aimed at preventing arbitrary invasions of liberty, the Wardlow opinion promises only to escalate the level of police activity, thereby fueling the cycle of antagonism between police and citizens. The cooperation of every citizen in the enforcement of our nation’s laws is the preferred normative aim, but this Note argues that such a goal will not be achieved unless and until the mutual perceptions of mistrust between the police and citizens are ameliorated. This Note analyzes the role that the Fourth Amendment might play in this endeavor and juxtaposes the right to ignore abusive police officers with the duty to cooperate with officers acting legitimately. The Note concludes that Fourth Amendment doctrine in this area has gradually granted unfettered discretion to police officers without providing appropriate guidelines to restrain the passions which accompany such a dangerous profession. It closes with some proposals by which all parties involved–pedestrians, individual police officers, and entire police forces–can respect one another’s interests and better serve society’s needs.

Supreme Court Justices frequently divide their opinions into parts, stncturing their decisions with Roman numerals, capital letters, Arabic numerals, and so on. This typographical convention, called here “outline-style formatting,” began to appear in the U.S. Reports in 1927 and has changed how the Justices create law. In this Note, Rudolph Delson presents a study of outline-style formatting in Supreme Court opinions. Delson suggests that stylistic concerns, such as the desire to make long opinions more approachable, drove the Court to adopt outline-style formatting. However, over time the Justices came to rely on outline-style formatting when they voted, joining in and dissenting from opinions on a part-by-part basis. Delson concludes that outline-style formatting is therefore no longer merely stylistic but now facilitates strategic behavior by the Justices.

Building on his earlier work on judicial decisionmaking in the D.C. Circuit, Professor Revesz now examines whether this court’s ideological divisions are affected by changes in the composition of the political branches: the two chambers of Congress and the Presidency. Thus, he seeks to test empirically the plausibility of positive political theory models of adjudication, which posit that judges act in an ideologically “strategic” manner. The data set developed for this study consists of all cases decided by the D.C. Circuit between 1970 and 1996 that challenged the health-and-safety decisions of twenty federal agencies. While the study confirms the author’s earlier findings of ideological voting in the D.C. Circuit, it does not find any statistically significant evidence that these ideological divisions are affected by the party controlling Congress or the Presidency. This finding invites a reassessment of the leading positive political theory accounts of the effects of judicial review of administrative action.

Diasporas–groups who maintain ties to a homeland while living abroad–present a challenge to standard paradigms of international law. The dominant statist model of international law, which limits the reach of a state’s laws to its own geographic boundaries, allows no legal connection between a diaspora and its homeland. The cosmopolitan model of international law, which minimizes the importance of nationality, also discourages such legal ties. Professor Anupam Chander proposes a third paradigm–the diasporan model–which accommodates the dual loyalties and interests of people living in diasporas by allowing them to be governed by the laws of both their homelands and their adopted countries. As an example of host the diasporan model might settle concrete legal problems, Chander discusses Resurgent India Bonds, a mechanism that the Indian government uses to raise capital from the Indian diaspora. He suggests a diasporan solution to the choice-of-law question raised by foreign-issued securities: enforcing forum-selection clauses which keep private litigants out of U.S. courts, while allowing regulators to enforce U.S. law against foreign issuers. This hybrid solution, Chander argues, makes a diasporan compromise: It respects the sovereignty of the adopted country over matters of public concern while allowing the diaspora to choose the law of its homeland to resolve private disputes.

Congress adopted an estate tax in 1916 in response to concerns about the harmful social effects of wealth concentration. Recently, proposals have been put forward to abolish the estate tax. Professor Repetti explores traditional justifications for the estate tax and reviews political and economic research on the effects of wealth concentration. He determines that wealth concentration is detrimental to the nation’s long-term economic growth because it creates educational disadvantages for the poor and sociopolitical malaise. It also harms the democratic process because it gives the affluent a disproportionally large political voice. He then evaluates the current estate tax and concludes that it provides the important benefits of decreasing dynastic wealth concentration and raising revenues. Moreover, empirical studies suggest that the tax does not discourage savings.