Articles

Many commentators believe that judicial independence and democratic accountability stand in irreconcilable tension with each other. Professors Ferejohn and Kramer suggest that these competing ideals are not themselves goals, but rather are means to a more important end: a well-functioning system of adjudication. Either or both may be sacrificed in the pursuit of this overarching objective. The United States Constitution seeks to achieve this objective by giving individual judges enormous independence while placing them within an institution that is highly susceptible to political control. The resulting vulnerability creates a dynamic that makes federal courts, and especially the Supreme Court, into effective self-regulators. The Authors argue that, seen in this light, the system of institutional self-restraint encompasses a broader range of judicial doctrines than has been understood previously. The Article concludes that reconciling the judiciary’s twin goals of democratic legitimacy and legal legitimacy requires a more balanced view, for maintaining the judicial branch’s independence lies as much or more in the judge’s own hands as in external political pressures.

In defective design and warning cases, courts and commentators increasingly are questioning the substantive distinction between negligence and strict liability causes of action. In 1998, the Restatement (Third) of Torts: Products Liability adopted a risk/utility analysis for defective design and warning claims that reflects a strong trend among jurisdictions in two ways. First, it advocated using the risk/utility test regardless of whether plaintiffs label their claims as negligence or strict liability (or, for that matter, implied warranty of merchantability). Second, the Restatement’s risk/utility analysis draws from principles of reasonableness, making strict liability essentially subject to a negligence analysis. In light of courts’ trend toward risk/utility and the Restatement’s position, commentators increasingly have wondered whether a plaintiffs choice between negligence and strict liability in design and warning claims largely amounts to a rhetorical preference. In this Article, Professors Richard L. Cupp Jr. and Danielle Polage present an empirical study of mock jurors that tests whether employing negligence versus strict liability language influences jury decisions when a substantively identical risk/utility standard is used. The authors found support for the perhaps counterintuitive argument that negligence language may favor plaintiffs by drawing on emotionally “hot” notions of fairness and fault, as opposed to the “cold” technical concepts of strict liability. The study found that jurors hearing the case under negligence language were more likely to find the defendant liable, and that they awarded, on average, almost twice the amount of damages compared to their strict liability counterparts. Indeed, although several findings showed advantages to using negligence language or disadvantages to using strict liability language, the study found no obvious rhetorical advantages to using strict liability language. The study thus presents a powerful challenge to the notion that strict liability is generally a pro-plaintiff doctrine under courts’ increasingly dominant approaches to design and warning cases.

The Antiterrorism and Effective Death Penalty Act (AEDPA), enacted by Congress in 1996 in the wake of the Oklahoma City bombing, curtailed habeas corpus review in numerous respects, including establishing severe restrictions on prisoners’ ability to file successive federal habeas corpus petitions. In this Article, Professor Bryan Stevenson examines the origins, nature, and effects of these expanded restrictions on successive filings. In reviewing the history of the legal system’s treatment of successive petitions, Stevenson demonstrates that the Supreme Court’s and Congress’s choices in this area were shaped not only by doctrinal considerations but also political variables and unexamined assumptions about prisoners and their lawyers. Stevenson uses actual examples to illustrate the apparently unintended consequences of AEDPA’s successive petition provisions, including the foreclosure of certain types of constitutional claims and the injection of numerous procedural complexities that undermine reliability and fairness. The Article identifies a variety of potential remedies, including congressional reform, liberal judicial interpretation of the statute’s provisions, expanded use of the Supreme Court’s original habeas corpus jurisdiction, and alternative procedural devices like Federal Rule of Civil Procedure 60(b) and expanded successive state postconviction review. Stevenson concludes that these devices are a necessary part of a much larger process of rethinking America’s flawed capital punishment system.

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.