Articles

The 2000 presidential election exposed a voting-technology divide in Florida and many other states. In this Article, Professor Paul M. Schwartz critiques this phenomenon from the perspective of systems analysis. He considers both technology and social institutions as components of unified election systems. Schwartz first examines data from the Florida election and demonstrates the central importance of feedback to inform voters whether the technology they use to vote will validate their ballots according to their intent-an advantage he finds distributed on unequal terms, exacerbating built-in racial and socioeconomic bias. Schwartz then turns to the various judicial opinions in the ensuing litigation, which embraced competing epistemologies of technology. He suggests that judges who favored a recount saw election technology as a fallible instrument for converting voters’ choices into votes, while the U.S. Supreme Court majority trusted machines over fallible humans and required hard-edged rules to cabin discretion and avoid human imperfections. Finally, the Article concludes with a review of efforts to reform the unequal distribution of voting technology. Schwartz finds that some efforts at litigation and legislation show promise, but in many instances they are stalled, and in many others they exhibit shortcomings that would leave the voting-technology divide in place for future elections.

In judicial opinions construing statutes, it is common for judges to make a set of assumptions about the legislative process that generated the statute under review. For example, judges regularly impute to legislators highly detailed knowledge about both judicial rules of interpretation and the substantive area of law of which the statute is a part. Little empirical research has been done to test this picture of the legislative process. In this Article, Professors Nourse and Schacter take a step toward filling this gap with a case study of legislative drafting in the Senate Judiciary Committee. Their results stand in sharp contrast to the traditional judicial story of the drafting process. The interviews conducted by the authors suggest that the drafting process is highly variable and contextual; that staffers, lobbyists, and professional drafters write laws rather than elected representatives; and that although drafters are generally familiar with judicial rules of construction, these rules are not systematically integrated into the drafting process. The case study suggests not only that the judicial story of the legislative process is inaccurate but also that there might be important differences between what the legislature and judiciary value in the drafting process: While courts tend to prize what the authors call the “interpretive” virtues of textual clarity and interpretive awareness, legislators are oriented more toward “constitutive” virtues of action and agreement. Professors Nourse and Schacter argue that the results they report, if reflective of the drafting process generally, raise important challenges for originalist and textualist theories of statutory interpretation, as well as Justice Scalia’s critique of legislative history. Even if the assumptions about legislative drafting made in the traditional judicial story are merely fictions, they nonetheless play a role in allocating normative responsibility for creating statutory law. The authors conclude that their case study raises the need for future empirical research to develop a better understanding of the legislative process.

The development of the Internet as a medium for consumer transactions creates a new question for contract law. In this Article, Professors Robert Hillman and Jeffrey Rachlinski address whether the risks imposed on consumers by Internet boilerplate requires a new lens through which courts should view these types of contracts. Their analysis of boilerplate in paper and Internet contracts examines the social, cognitive, and rational factors that affect consumers’ comprehension of boilerplate and compares business strategies in presenting it. The authors conclude that the influence of these factors in Internet transactions is similar to that in paper transactions. Although the Internet may in fact allow companies a greater opportunity to exploit consumers, Professors Hillman and Rachlinski argue that this phenomenon does not implicate a need to create a new framework for deciding cases involving Internet transactions. The authors conclude that Professor Karl Llewellyn’s theory of blanket assent, coupled with the unconscionability and reasonable-expectations doctrines that form the traditional framework used by courts to determine the validity of boilerplate terms in the paper world, should apply equally to the Internet world. Recognizing some of the specific concerns that arise in respect to boilerplate in Internet contracts, however, they address a number of issues to which courts should apply particular scrutiny and that may require the adoption of new approaches in the future.

For decades, scholars have debated the Framers’ intentions in adopting the Establishment Clause. In this Article, Professor Noah Feldman gives an account of the intellectual origins of the Establishment Clause and analyzes the ideas that drove the debates over church and state in eighteenth-century America. The literature on the history of the Establishment Clause has categorized discrete strands of eighteenth-century American thought on church-state relations, divided by distinct motives and ideologies. Feldman argues that this is a mischaracterization and proposes instead that a common, central purpose motivated the Framers to enact the Establishment Clause-the purpose of protecting the Lockean value of liberty of conscience. Feldman begins by providing an archeology of the idea of liberty of conscience, from Luther and Calvin to Locke. He then presents his account and analysis of the intellectual origins of the Establishment Clause in eighteenth-century American thought. He considers possible uses of this history, then concludes with observations on the utility of using intellectual history in constitutional analysis of cases invoking the Establishment Clause.

Few judicial decisions in recent years have captured the attention of lawmakers, practitioners, and academics more than the Supreme Court’s decisions dealing with state sovereign immunity. Holding that Congress may not abrogate state sovereign immunity from federal statutory claims when acting pursuant to its Article I regulatory powers, those decisions seriously limit an individual’s ability to enforce rights against state defendants, creating a gap between right and remedy that arguably impairs the rule of law. While much of the scholarship in this area continues to dwell on abrogation as the primary means of allowing individuals to vindicate rights against the states, the Court clearly favors an approach in which states waive their immunity from suit. In this Article, Professor Christina Bohannan examines three common situations in which a state might be deemed to waive its immunity from suit: first, by failure to raise the immunity as a defense at trial; second, by private agreement; and third, by accepting federal benefits made conditional on waiver of immunity from federal claims. She determines that because the Court’s sovereign immunity and Spending Clause jurisprudence has been concerned with ensuring that a state’s waiver is voluntary and unequivocal rather than coerced, this case law precludes holding that a state waives its immunity by merely failing to raise it at trial. She concludes, however, that where a state voluntarily and unequivocally waives its immunity in a private contract or in exchange for benefits available exclusively from the federal government, its waiver should be enforced notwithstanding a subsequent attempt to revoke it at or before trial. Thus, a waiver approach to state sovereign immunity could provide a constitutional way for individuals to vindicate their rights against the states in a number of cases, thereby narrowing the rightremedy gap created by the Court’s abrogation decisions.

Antitrust law has long been concerned that the loss of a firm, through merger or exclusion, may improve the prospects for tacit or express collusion in a concentrated market. In merger law, this perspective has been codified as a presumption of anticompetitive effect arising from high and increasing market concentration. Antitrust’s structural presumption has been eroding in the courts, however, in part because its economic underpinnings increasingly are seen as unsettled. This Article explains how coordinated competitive effects analysis can be reconstructed around the role of a maverick firm that constrains prices when industry coordination is incomplete. Doing so helps distinguish procompetitive mergers from anticompetitive ones, and may aid in the analysis of alleged exclusion. It also provides a new economic justification for the structural presumption and points toward a continuing role for that presumption when the maverick cannot be identified or when it is not possible to determine the effect of a merger on the maverick’s incentives. The resulting approach to coordinated competitive effects analysis is illustrated with an extended example involving oligopoly conduct in the U.S. passenger airline industry.

This Article provides an economic analysis of optimal negligence liability for physicians and managed care organizations (MCOs), explicitly modeling the role of physician expertise (and inadvertent error) and MCO authority. Professors Arlen and MacLeod find that even when patients anticipate the risks imposed on them, physicians and MCOs do not take optimal care absent sanctions for negligence because markets and contracts cannot regulate their non-contractable, post-contractual actions that are essential to optimal care. Negligence liability can induce optimal care if damage rules are optimal. Optimality generally will require that MCOs be held liable for negligence by affiliated physicians, in addition to their own negligence. Moreover, Professors Arlen and MacLeod find that MCOs should be liable even when they do not exert direct control over physicians. Finally, they show that it may be optimal to preclude physicians and MCOs from obtaining liability waivers from patients, even when patients are fully informed and waive only when it is in their interests to do so at that moment.

Assuming that the enhancement of people’s well-being is a worthy goal for the state to pursue, the question of what well-being consists of arises. This fundamental question has been debated extensively by philosophers, but it is mostly ignored in the legal literature, mainly due to the dominance of the economic-analysis-of-law movement in legal scholarship. The shortcoming of the efficiency analysis is that it primarily focuses on satisfaction of preferences, while disregarding other possible criteria of welfare. Thus, if the preferences considered are people’s actual, subjective ones, then whenever a person’s desires are based on misinformation, prejudice, or lack of self-esteem, the fulfillment of these preferences might result in a reduction-rather than advancement-of that person’s welfare. This Article argues in favor of an objective approach to welfare.

According to an objective approach, certain things, such as knowledge of ourselves and the world around us, accomplishment of worthwhile goals, and attainment of deep and meaningful relationships, are intrinsically valuable, notwithstanding one’s preferences. The Article shows that an objective theory need not be rigid or elitist, and can be sufficiently flexible to respect people’s autonomy and allow many paths to achieving a good life. It further demonstrates that the obvious attractions of preference theories-their antipaternalistic flavor and practical simplicity-are misleading. In fact, objectivity cannot be avoided even in seemingly subjective theories of well-being. The Article explains the importance and normative implications of an objective theory of well-being for legal theory and develops an objective approach to property law. Objective standards justify certain requirements of property law, in terms of both quantity and quality. These requirements are manifest in existing legal rules, such as property exemptions in bankruptcy, the numerus clausus principle, and restrictions on owners’ power to control property after death.

The federal government, all fifty states, and dozens of foreign countries have enacted computer crime statutes that prohibit “unauthorized access” to computers. No one knows what it means to “access” a computer, however, or when access becomes “unauthorized.” The few courts that have construed these terms have offered widely varying interpretations. Several recent decisions suggest that any breach of contract renders an access unauthorized, broadly criminalizing contract law on the Internet. In this Article, Professor Orin Kerr explains the origins of unauthorized access statutes, and examines why the early beliefs that such statutes articulated a clear standard have proven remarkably naive. He then shows how and why the courts have construed these statutes in an overly broad manner that threatens to criminalize a surprising range of innocuous conduct involving computers. Finally, Professor Kerr offers a normative proposal for interpreting “access” and “authorization.” Courts should reject a contract-based theory of authorization, and should limit the scope of unauthorized access statutes to circumvention of code-based restrictions on computer privileges. This proposed interpretation best mediates between securing privacy and protecting the liberty interests of Internet users. It also mirrors criminal law’s traditional treatment of consent defenses, and avoids possible constitutional difficulties that may arise under the broader constructions that courts have recently favored.

This Article discusses the charge that class actions subject defendants to excessive settlement pressure, so that defendants effectively are blackmailed. Prominent federal judges, including Frank Easterbrook, Henry Friendly, and Richard Posner, have endorsed this proposition, which is drawn from a famous law review article by Professor Milton Handler.

The Article begins by describing the blackmail charge in detail. A close reading reveals four different accounts, some of which are incompatible with others. Proponents have missed these important differences. The Article then assesses the soundness of each version of the blackmail charge. None survives scrutiny. All (except possibly Handler’s) use an analogy to blackmail that is faulty and unhelpful. All make factual assertions that are questionable or unproven, such as the claim that class actions always settle or that risk aversion drives the decision to settle on the defense side. All also need, but lack, a persuasive normative account of settlement pressure, without which it is impossible to show that class action defendants wrongly are coerced.