Articles

The rule of strict stare decisis, when a court construes a statute before an agency does, the judicial interpretation becomes binding precedent, even when Congress has delegated primary interpretive authority to the agency. In this Article, Kenneth Bamberger argues that the Supreme Court’s adherence to this strict rule of precedent for the interpretations of administrative statutes undermines the separation-of-powers justifications for agency administration and jeopardizes effective policymaking. He illustrates how the Supreme Court’s decision in United States v. Mead, which limits the types of agency constructions that deserve judicial deference, dramatically increases the opportunities for courts to interpret statutes on their own. In response to the constitutional and normative disconnects caused by judges’ enhanced ability to commandeer agency discretion, Bamberger proposes a model of provisional precedent as an alternative to strict stare decisis. This approach, based on the federalism model that governs federal court adjudication of state law issues, gives stare decisis effect to reasonable judicial constructions of regulatory statutes only until governing agencies make binding interpretations of their own.

This Article defends racial integration as a central goal of race-based affirmative action. Racial integration of mainstream institutions is necessary both to dismantle the current barriers to opportunity suffered by disadvantaged racial groups, and to create a democratic civil society. Integration, conceived as a forward-looking remedy for de facto racial segregation and discrimination, makes better sense of the actual practice of affirmative action than backward-looking compensatory rationales, which offer restitution for past discrimination, and diversity rationales, which claim to promote non-remedial educational goals. Integrative rationales for affirmative action in higher education also could easily pass equal protection analysis, if only the point of strict scrutiny of racial classifications were understood. Unfortunately, the development of strict scrutiny as an analytical tool has been hampered by the Court’s confusion over the kinds of constitutional harm threatened by state uses of racial classification. This Article sorts out these alleged harms and shows how strict scrutiny should deal with them. It shows how narrow-tailoring tests constitute powerful tools for putting many allegations of constitutional harm from race-based affirmative action to rest, and for putting the remainder into perspective. It also argues that there is no constitutional or moral basis for prohibiting state uses of racial means to remedy private-sector discrimination. Integrative affirmative action programs in educational contexts, which aim to remedy private-sector discrimination, can therefore meet the requirements of strict scrutiny, properly interpreted.

This Article presents a framework for analyzing the tradeoff between structuring bondholder rights as individual or as collective rights. Individual rights cannot be modified without the consent of each affected bondholder and they can be enforced by any bondholder whose right is violated. By contrast, if rights are collective, they can be modified by a majority of bondholders and they cannot be enforced without the consent of a majority of bondholders. The framework developed in this Article identifies the respective theoretical problems of vesting bondholder rights individually or collectively and examines the institutional setting of the United States corporate bond market to assess the practical significance of these problems. The Article ultimately endorses the presently prevailing structure of rights governing amendments, but identifies a number of defects with respect to the enforcement of rights. It concludes with specific recommendations for revisions in the structure and judicial interpretation of bondholder rights.

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.