Articles

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.

This Article contends that the current law governing judicial review of agency inaction, though consistent with the prevailing theory of agency legitimacy, is inconsistent with the founding principles of the administrative state. The Supreme Court’s reluctance to allow judicial review of agency inaction reflects the popular view that agency decisionmaking should be subject foremost to the scrutiny of politically accountable officials. The difficulty is that even scholars who generally support this view of agency decisionmaking reject the Court’s treatment of agency inaction. Yet these scholars have failed to appreciate the reason. The reason is that the founding principles of the administrative state are dedicated not only to promoting political accountability, but also to preventing administrative arbitrariness–and reserve a role for judicial review toward that end. This Article shows that agency inaction raises a concern for administrative arbitrariness because it is susceptible to the same narrow influences that derail agency action from public purposes. Agency inaction that reflects such influences, though often rational from a political standpoint, nonetheless is arbitrary and objectionable from a democratic perspective.

This Article therefore suggests that courts eschew any special prohibitions on judicial review of agency inaction, and instead subject agency inaction to the same principles of judicial review that apply to agency action. It proposes changes to the two doctrines that most frequently block judicial review of agency inaction: nonreviewability and standing. Furthermore, it recommends that courts carve any exceptions to judicial review for agency inaction from established constitutional law principles. It argues that nonreviewability should be understood as an analogue to political question doctrine, precluding courts from policing conduct committed to the unfettered discretion of administrative officials. Similarly, it argues that standing should be understood as an analogue to non delegation doctrine, precluding Congress through citizen-suit provisions from effectively delegating policymaking power to private parties. More broadly, this Article argues that both nonreviewability and standing should be viewed as links to separation of powers doctrine, barring courts from hearing challenges to the generalized manner in which agencies perform their jobs. In offering these analogies, this Article credits the Supreme Court’s intuition that important constitutional values place some enforcement discretion beyond the reach of judicial review-even if Congress disagrees. But it recommends using established separation of powers principles to constrain this intuition from producing doctrines that subvert the prevention of arbitrary agency decisionmaking.

This Article examines the No Child Left Behind Act, which may be the most important federal education law in our nation’s history. The Act is supposed to increase academic achievement in schools across the nation, raise the performance of disadvantaged students to the level of their more affluent counterparts, and attract qualified professionals to teach in every classroom. These goals are obviously laudable. As Professor Ryan explains, however, the Act creates incentives that actually work against their achievement. Specifically, the Act unintentionally encourages states to lower their academic standards, promotes school segregation and the pushing out of poor and minority students, and discourages good teachers from taking jobs in challenging classrooms. Should any or all of these effects occur, achieving the Act’s goals will be more difficult, not less. Professor Ryan goes on to suggest a solution, albeit a partial one, to the problems created by the No Child Left Behind Act. Rather than focus on absolute achievement levels as the basis for school accountability, Ryan argues that the federal government and states should focus on rates of growth. Doing so would not only give a more accurate picture of school quality, and thus provide a fairer basis for school accountability; it would also diminish or eliminate the perverse incentives created by the No Child Left Behind Act. The Article concludes with a brief discussion of what the No Child Left Behind Act can teach us about the proper role of the federal government in education law and policy.

In its Fourteenth Amendment jurisprudence, the Supreme Court regards intentional discrimination as the principal source of racial injury in the United States. In this Article, R.A. Lenhardt argues that racial stigma, not intentional discrimination, constitutes the main source of racial harm and that courts must take the social science insight that most racialized conduct or thought is unconscious, rather than intentional, into account in their constitutional analyses of acts or policies challenged on the grounds of race. Drawing on the social science work of Erving Goffmanbreaking work of Charles H. Lawrence, Professor Lenhardt argues that courts should reframe the constitutional inquiry to account for the risk or evidence of stigmatic harm to racial minorities. Professor Lenhardt explains that stigmatic harm occurs when a given act or policy sends the message that racial difference renders a person or a group inferior to Whites, the category constructed as the racial norm. This stigma imposes what Professor Lenhardt calls citizenship harms, which prevent members of racial minorities from participating fully in society in a variety of contexts. Professor Lenhardthistorical context of the challenged act or policy. Third, they should evaluate the current context of the act or policy, including consideration of a possible disparate impact on members of racial minorites. Finally, courts should consider the probable future effects of the act or policy in terms of its likely citizenship effects on members of racial minorities. Professor Lenhardt argues that, while the use of this test will not eliminate racial harms altogether, it will enable courts and policymakers to engage in a disciplined and systematic analysis of racial harm which will ultimately provide the basis for more effective means of addressing racial stigma and persistent racial inequalities in the United States.

While scholars have engaged in considerable debate about the continued viability of confidentiality in delinquency proceedings, much of that debate has focused on the media’s First Amendment right to access those proceedings. Now, with crime prevention at the forefront of many political agendas, policymakers are reframing the confidentiality debate as a question of public safety and accountability, and juvenile records are being disseminated, both lawfully and unlawfully, to agencies and institutions responsible for the protection, supervision, and care of children. Most state legislatures have rewritten confidentiality statutes to grant multiple exceptions to general rules protecting confidentiality; some states even require law enforcement officials to notify schools when students have been arrested.

In this Article, Professor Henning examines how schools and public housing authorities obtain juvenile records and explains how these institutions may use the records to exclude children and their families from the basic benefits of education and housing. Drawing on recent research in the field of developmental psychology, Professor Henning reevaluates early assumptions about adolescents’ amenability to treatment and the impact of stigma on children and explores the practical implications of sharing records with schools and public housing authorities, questioning whether new confidentiality exceptions actually will yield the expected benefits of improved public safety. She concludes that legislators should deny public housing authorities access to juvenile records but allow schools limited access to records through a series of school liaisons. These liaisons should attempt to accommodate, on a case-by-case basis, the often competing values of preserving safety in schools while enabling the rehabilitation of children in the juvenile justice system.

Standing doctrine serves the important function of ensuring that plaintiffs are the proper parties to bring suits in federal courts, but it has long been the subject of criticism. Scholars have labeled it an incoherent and unstable area of the law and declared that standing decisions are primarily influenced by the political ideologies of judges. Several existing empirical studies have analyzed standing in the federal courts and supported the claim that standing decisions are rooted primarily in individual politics and not legal doctrine. Spurred by this widespread criticism as well as the empirical support, several well-known scholars have proposed reforms of the standing doctrine in an effort to hinder political decisionmaking or at least to bring more candor to the decisionmaking process.

In this Article, Professor Nancy Staudt undertakes rigorous empirical analyses to test the underlying claim that all standing decisions are politically motivated. Improving upon the prior standing studies that have a range of limitations and possible flaws, Professor Staudt’s study focuses on standing decisions in one area of the law-taxpayer challenges to government spending-and analyzes the results up and down the federal judicial hierarchy. Using statistical models, she finds that judges render law-abiding and predictable decisions where clear precedent and effective judicial oversight exist; where these variables are absent, however, standing decisions are more likely to be based on judges’ personal ideologies. Professor Staudt then applies her findings to the proposed standing reforms and determines that they address some of the problems in the standing doctrine but ignore the importance of the judicial hierarchy. The reform proposals, she argues, are destined to fail unless they consider institutional factors such as the level of oversight and monitoring in the judicial hierarchy.