Articles

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.

Today in the United States, millions of undocumented persons are working long hours for illegally low pay, in workplaces that violate health and safety codes, for employers who defy labor and antidiscrimination laws. Many more fall victim to criminal activity, forced into involuntary servitude and subjected to physical abuse. Yet these immigrants often do not report their harsh conditions and cruel treatment for fear that they will attract the attention of immigration officials and be deported. Law enforcement policies that deter noncitizens from reporting crimes are surely unwise, undermining public safety and health and entrenching undocumented immigrants in a caste hierarchy. In this Article, Professor Michael Wishnie argues that those policies may be unconstitutional as well— violating noncitizens’ First Amendment right to “petition the Government for a redress of grievances.” The Article begins with the Supreme Court’s 1990 suggestion that noncitizens are not among “the people” whose rights the Framers intended to safeguard in the First and Fourth Amendments. To confront the Court’s reasoning on its own historical terms, Professor Wishnie examines the rich history of petitioning by noncitizens from early English tradition through the early nineteenth century, illustrating that the Founders did not intend to exclude noncitizens from “the people” whose rights would be established. Professor Wishnie then develops a theory of “extraordinary speech” to protect noncitizen petitioning and demonstrates how such a theory coheres with related doctrines of court access, unconstitutional conditions,and equal protection. Applying the theory, he concludes that some policies discouraging immigrant communications to law enforcement officials are so burdensome as to violate the First Amendment.

This Article examines executive branch agency actions concluded just before a new President takes office, such as “midnight” rulemaking and late-term hiring and promotion, which Professor Mendelson collectively refers to as “agency burrowing.” Congress, the media, and some commentators have portrayed such activities as unsavory power grabs that undermine the President-elect’s ability to direct the functions of administrative agencies. Rather than dismissing agency burrowing out of hand, however, Professor Mendelson argues for a more nuanced approach. In some cases, burrowing can make positive contributions to the democratic responsiveness of agencies, agency accountability, and the “rule of law.” A fuller analysis of burrowing also suggests the need for a more nuanced approach to President-centered theories of the administrative state. Maximum presidential oversight may be insufficient to ensure agency accountability and democratic responsiveness. Instead of focusing centrally on a formal President-agency relationship, we may wish to give greater attention to more functional means of ensuring agency legitimacy such as monitoring, focused public dialogue on issues before agencies, and agency development of self-limiting rules.

This Article argues that efforts to square the administrative state with the constitutional structure have become too fixated on the concern for political accountability. As a result, those efforts have overlooked an important obstacle to agency legitimacy: the concern for administrative arbitrariness. Such thinking is evident in the prevailing model of the administrative state, which seeks to legitimate agencies by placing their policy decisions firmly under the control of the one elected official responsive to the entire nation—the President. This Article contends that the “presidential control” model cannot legitimate agencies because the model rests on a mistaken assumption about the sufficiency of political accountability for that purpose. The assumption resonates with the premise, familiar in constitutional theory, that majoritarianism is the hallmark of legitimate government. This premise, brought to the fore by Alexander Bickel, now is questioned among constitutional theorists. Moreover, majoritarianism is not enough to legitimate administrative decisionmaking under our constitutional structure for the reason that it does not reliably address the concern for arbitrariness. This Article argues for a more direct focus on the concern for arbitrariness—an approach that has at its core a concern for good government, not simply “accountable” government in the post-Bickel, majoritarian sense of that word. The Article demonstrates how a more direct approach suggests new possibilities for resolving the time-honored problem of agency legitimacy and new ways of understanding the perennial puzzles of administrative law.

What is the proper relationship between law and American foreign policy? Can or should law and legal institutions shape international relations? Although Americans vigorously debate these questions today, there was a time when they assumed a tight connection between law and foreign affairs. Lawyers dominated American foreign policy at the turn of the twentieth century; every Secretary of State from 1889 to 1945 was a lawyer, and the Republican Party’s chief foreign policy thinker, Elihu Root, was also its foremost lawyer. In this Article, Professor Jonathan Zasloff argues that this relationship between law and foreign policy had real consequences for the shape of American diplomacy during that period. Professor Zasloff contends that classical legal ideology—the prevailing ideological framework among elite lawyers in the late nineteenth and early twentieth centuries—profoundly influenced the direction of American foreign policy. Classical legal ideology taught that law does not derive its effectiveness from the coercive state but rather from popular custom and social norms. Moreover, it held that law could be effective without state coercion because it stood as a neutral, apolitical source of order that satisfied widely varying social groups. These two beliefs implied that international law could form a basis for a legally regulated world order and that traditional balance-of-power methods were either unnecessary or harmful. As policymakers debated the shape of the post-World War I world order, classical legal ideology told lawyer-statesmen like Root that they did not need to make strategic commitments to ensure global stability. Lawyers imbued with classical legal ideology concentrated on international law and institutions and neglected realpolitik foreign policy. In doing so, they unwittingly contributed to global catastrophe.

Private organizations enjoy constitutional rights that allow them to coerce their members. Such rights pose a puzzle for theories maintaining that the purpose of rights is to protect individuals from coercion. This Article proposes a solution to the puzzle by arguing that such theories of rights—which the Article terms “anticoercion theories”—are misguided. The purpose of rights is not to protect individuals from coercion but rather to insure that individuals are coerced by the right sort of institution. The Article defends this “institutional” theory of rights as more normatively attractive than the anticoercion theory. The institutional theory is also better capable of explaining the U.S. Supreme Court’s doctrine of associational autonomy in Boy Scouts of America v. Dale and Troxel v. Granville.

Just over two years ago, in Metalclad Corp. v. United Mexican States, an arbitral tribunal announced a seventeen-million-dollar award under NAFTA Article 1110, which requires host governments to compensate foreign investors for acts of “direct or indirect expropriation” or “measures tantamount to expropriation.” Several of these “regulatory takings” claims have recently been filed against NA FTA governments, and while it is still too early to judge how broadly tribunals will interpret the expropriation provision, the Metalclad case has opened the door for investors to challenge and potentially stifle environmental and land use regulation.

In this Article, Professor Vicki Been and Joel Beauvais shed light on two issues central to the debate over global investor-protection provisions. First, the Article compares the expropriation decisions under NAFTA’s Article 1110 with regulatory takings law under the Fifth Amendment of the U.S. Constitution. Despite claims that NAFTA simply “exports” the U.S. takings standard, the tribunals’ interpretations of the expropriation provision have exceeded the substantive scope of U.S. compensation requirements while removing procedural limitations typically imposed on domestic takings claims. Second, the Article explores the rationales traditionally asserted for domestic compensation requirements—cost-internalization, fairness, and insurance—finding that they do not justify an expansive regulatory takings doctrine in the international context. After rejecting claims that expropriation provisions benefit developing countries by attracting foreign investment, Been and Beauvais go on to highlight the significant costs of imposing a broad international regulatory takings doctrine: It gives foreign investors a competitive advantage over domestic firms, redistributes wealth between domestic taxpayers and foreign firms, and may deter efficient regulation.

The Article concludes that a global regulatory takings doctrine is neither necessary nor beneficial. Because of its substantial risks, the United States and other sponsors of international investment agreements should eschew the expansion of compensation requirements, instead limiting expropriation provisions to the traditional concerns of investor protections: physical invasions and seizures, direct nationalization, and governmental assumption or transfer of control of foreign property.

In this Article, Professor Patricia Bellia explores how the law should treat legal claims by owners of Internet-connected computer systems to enjoin unwanted uses of their systems. Over the last few years, this question has become increasingly urgent and controversial, as system owners have sought protection from unsolicited commercial e-mail and from”robots” that extract data from Web servers for competitive purposes. In the late 1990s and early 2000s, courts utilizing a wide range of legal doctrines upheld claims by network resource owners to prevent unwanted access to their computer networks. The vast weight of legal scholarship has voiced strong opposition to these “cyberproperty” claims, arguing that such property-rule protection would threaten productive uses of the Internet, inhibit innovation, or even create an anticommons.

This Article challenges the typical criticisms of property-rule protection, demonstrating that they are based on simplifications or false assumptions about the behavior of system owners and the nature of the Internet. Most importantly, scholars have overlooked the use of technical measures to block access, in conjunction with or in place of legal measures. The Article then lays out a wide range of potential legal rules for network resources, from absolute property-rule protection to a “technology displacing” approach that actually limits the technical barriers a system owner can impose, with a number of “loperty” rules–involving property-rule protection triggered by a system owner taking a particular measure–in between. After examining the existing case law, the Article agrees that courts’ recent trend toward a closed-access property-rule regime is inappropriate. Professor Bellia, however, demonstrates that attempts to preserve open access by rejecting any sort of property-rule protection are equally misguided. She points out that too-weak legal protection will prompt greater reliance on technical measures that mimic a property-rule approach, similarly limiting access. Yet, because technology lacks the flexibility and common sense exceptions inherent to legal application, the results for the community-at-large could be worse.

The Article concludes that entitling a system owner to property-rule protection so long as she provides the user with actual notice of permissible uses of the system or adopts a system configuration making it plain to the user that access is restricted would better balance the interests of consumers and system owners than rejecting property-rule protection outright. Although such an approach might be inappropriate in a limited class of cases–as, for example, when a system owner’s predominant motive for limiting access is anticompetitive in nature–Professor Bellia demonstrates that courts and legislatures can apply technology-displacing measures in such cases to achieve an appropriate legal balance.

Recent years have seen dramatic growth in the number of international tribunals at work across the globe, from the Appellate Body of the World Trade Organization and the International Tribunal for the Law of the Sea, to the Claims Resolution Tribunal for Dormant Claims in Switzerland and the International Criminal Court. With this development has come both increased opportunity for interaction between national and international courts and increased occasion for conflict. Such friction was evident in the recent decision in Loewen Group, Inc. v. United States, in which an arbitral panel constituted under the North American Free Trade Agreement found a Mississippi jury trial to have been “the antithesis of due process.”

Much of the interaction of courts across national borders–including the citation of foreign legal authority, transnational coordination of complex litigation, and the enforcement of foreign judgments–has been analyzed through the metaphor of “dialogue. ” As suggested by the Loewen case, however, there is a growing pattern of interaction between international tribunals and national courts for which dialogue is an ill-suited analogy. Contrary to conventional expectations of incapacity and restraint in international adjudication, recent interactions between international tribunals and domestic courts incorporate a significant dimension of “review” in both a literal and a figurative sense. Although such review is not appellate in nature, it shares with appellate review some potential to effectuate its mandate without the consent of the court subject to review. This dimension of “power” further distinguishes emerging cases of international review from transnational dialogue. Standing between the hierarchy of appellate review and the comity of judicial dialogue, Loewen and similar occasions for international engagement with national courts represent a distinct pattern of judicial interaction, one I develop and detail as “dialectical review.”

Defined broadly as a hybrid of appellate review and dialogue, the nature of dialectical review can be elaborated by examining other hybrid judicial interactions–federal habeas review of state criminal convictions and appellate courts’ use of dicta as a signaling device to lower courts. In each of these cases, a form of dialectical review serves as a mechanism of legal innovation. In the face of accelerating trends of globalization, a pattern of dialectical review between international and national courts can help to facilitate the emergence, evolution, and internalization of universal norms of due process. The present analysis thus offers international and domestic judges, as well as policymakers, a framework for understanding and facilitating beneficial judicial interaction in an ever-shrinking world.

This Article builds on the literature generated by Calabresi and Melamed’s framework for protecting entitlements through property and liability rules. Pointing to the gap between academic commentators’ conclusions that liability rules are superior in most circumstances and the reality that property rules overwhelmingly predominate in the law, Professor Smith offers a theory of the advantages of property rules that is based on information costs. The starting point for this theory is the observation that assets are heterogeneous in ways that are economically significant but costly to identify and value; liability rules inevitably involve some need for an official to make such valuations. Professor Smith argues that the preference for liability rules rests on certain convenient but overly simple assumptions that elide the costs of producing information about assets and activities.

Second, Professor Smith explores the natural pairing between property rules and owners’ rights to exclude others from their property. The “exclusion strategy” for protecting property rights relies on simple on/off signals such as the boundary around a parcel of land to communicate rights and duties to the rest of the world. Within this protected zone, owners have open-ended choices of how to invest in or consume the asset. This Article shows how pairing property rules with an exclusion strategy has advantages that stem from saving information costs, deterring opportunism by potential takers, and discouraging owners from engaging in wasteful self-help.

Finally, this Article shows how the information-cost theory illuminates the connection between property rule protection and traditional notions such as residual claimancy and property in the sense of an in rem right to a thing.