Articles

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.

In this Article, Professor Seana Shiffrin identifies and explores a tension between the Supreme Court’s recognition of First Amendment protection for incendiary speech and the Court’s argument for rejecting the claim to a right to assisted suicide. Constitutionally, speakers may not be held liable for the illegal actions they inspire in audience members, unless the very high Brandenburg standard is met. By contrast, it is constitutional to prevent those who would seek assisted suicide from doing so, on the ground that a culture in which some elect suicide will encourage a higher incidence of involuntary deaths. Here, those who would voluntarily seek to exercise an important liberty interest are restricted in light of the projected illegal action of others. Shiffrin argues that this same tension is replicated in the contrast between the Court’s approach to incendiary speech and its approach to the regulation of secondary effects. Shiffrin contends that this tension holds special interest because the asymmetry it represents privileges intended harm over merely foreseen or foreseeable harm, inverting the traditional priority associated with the doctrine of double effect. Shiffrin argues that, surprisingly, this inversion may be defensible in legal contexts, even if it is not sustainable in interpersonal moral theory. In fact, the inversion can result from the use of double-effect-style reasoning at the level of rule formation. Although this inversion may seem counterintuitive, the justifications for the legal protections for freedom of speech and for self-determination may provide a plausible explanation. We may understand the doctrinal difference by examining the structure of the values at which each regulation is aimed. The value of freedom of speech can only be realized if speakers are insulated from responsibility for the persuasive impact of their speech; by contrast, the liberty interest valued in the context of assisted suicide does not encompass the side effects of that action. This justification may also have implications for the future interpretation of the secondary effects doctrine.

Although there are demands for procedural “reform” in the face of a perceived “litigation explosion” and “liability crisis,” little empirical research has been done to determine if those fears are legitimate even though a multitude of solutions are being proposed and some have been promulgated. This Article examines the use of summary judgment and the motion to dismiss in light of these increasing concerns about the efficiency of the federal judicial system. Professor Miller analyzes the 1986 Supreme Court summary judgment trilogy and its effect in transforming the procedural device into a method frequently used to dispose of litigation before trial. He studies decisionmaking in the federal courts with regard to the trilogy and expresses concern that courts have extended the use of summary judgment and the motion to dismiss to resolve disputes that are better left to trial and the jury. Courts, Professor Miller argues, too often appear to be placing their interests in the efficient resolution of disputes, concerns about jury capability, and other matters above litigants’ rights to a day in court and jury trial, and he suggests that judicial restraint as well as further Supreme Court guidance is needed to prevent trial courts’ discretion from eclipsing these fundamental rights of litigants.

For over a generation, constitutional theory and academic jurisprudence have attempted to reconcile, on the one hand, the rule of law and the Constitution’s fundamentality with, on the other hand, the fact that legal and constitutional rules frequently do not produce determinate answers to concrete controversies. The approach of radical democrats who would abandon judicial review is unacceptable to all those who believe that some judicially enforceable limits on politics are needed to prevent majoritarian tyranny. At the same time, however, constitutional theories that attempt to justify judicial review have limited utility; at best they strike a compromise between the tyranny of the majority and the counter-majoritarian difficulty. Academic jurisprudence faces a parallel dilemma. Under close scrutiny, both positivism and its principal alternative—Dworkin’s “law as integrity”—turn out to adopt the same strategy for coping with legal indeterminacy: Each claims that the law’s areas of ambiguity are small; yet neither theory nor any of the leading approaches to constitutionalism proposes concrete measures to minimize the impact of legal indeterminacy.

Drawing inspiration from the Legal Process approach of Hart and Sacks, this Article proposes that instead of devising justifications for judicial review or explanations of the task of judges, theorists would do better to design institutions that reduce the domain of legal indeterminacy. Where Hart and Sacks proposed deference to politically accountable actors, however, this Article advocates deep collaboration with the other institutions of government. Departing from the Legal Process assumption that courts must defer to one of a fixed menu of institutions, this Article develops a model of “experimentalist” courts and agencies that are always in transition. This model is based in part on the explosive emergence of “problem-solving courts,” nominally judicial bodies that are more akin to decentralized administrative agencies than to conventional adjudicators. The model is also based on some hints in Supreme Court doctrine that suggest a role for appellate courts in using the opportunity of legal indeterminacy to create the preconditions for local deliberation about the content of legal norms.