Articles

Information gaps and uncertainties lie at the heart of many persistent pollution and natural resource management problems. This article develops a taxonomy of these gaps and argues that the emerging technologies of the Information Age will create new gap-filling options and thus expand the range of environmental protection strategies. Remote sensing technologies, modern telecommunications systems, the Internet, and computers all promise to make it much easier to identify harms, track pollution flows and resource consumption, and measure the resulting impacts. These developments will make possible a new structure of institutional responses to environmental problems including a more robust market in environmental property rights, expanded use of economic incentives and market-based regulatory strategies, improved command-and-control regulation, and redefined social norms of environmental stewardship. Likewise, the degree to which policies are designed to promote information generation will determine whether and how quickly new institutional approaches emerge. While some potential downsides to Information Age environmental protection remain, the promise of a more refined, individually tailored, and precise approach to pollution control and natural resource management looks to be significant.

Existing economic analyses generally frame copyright as presenting a conflict between promoting efficient levels of access to creative works on the one hand and providing sufficient incentives to support their creation on the other. The supposed irreconcilability of the access-incentives tradeoff has led most scholars to regard copyright as a necessary evil and to advocate limiting copyright protection to the lowest level still sufficient to support creation of the work. In this Article, Professor Christopher Yoo breaks with the conventional wisdom and proposes a new approach to copyright law based on the economics of product differentiation. This differentiated products approach provides an explanation for market features that appear to be internal contradictions under the traditional approach. It also surpasses prior work by providing a basis for formalizing the incentives side of the tradeoff. In so doing, it underscores the importance of an alternative means for promoting access that has largely been ignored in the current literature: facilitating entry by close substitutes for existing works and allowing the ensuing competition to increase access by lowering prices. Focusing on this alternative means for promoting access further demonstrates that the access-incentives tradeoff may not be as intractable as generally believed, since facilitatingentry can promote both considerations simultaneously. The differentiated products approach also assigns the government responsibilities that are better suited to its institutional capabilities than does the traditional approach. Equally importantly, it isolates the impact of three different dimensions of copyright protection, rather than depicting all aspects of copyrightprotectionwith a single variable in the manner of previous analyses. The more nuanced analysis made possible by the differentiated products approach suggests that economic welfare would best be promoted if copyright were strengthened along two of these dimensions and weakened along the third.

The Hague Convention on the Civil Aspects of Child Abduction, implemented in the United States through the International Child Abduction Remedies Act, represents a global effort to stem the harmful practice of parents resorting to abduction across national borders to circumvent adverse custody rulings. The Abduction Convention is a mutual agreement to return wrongfully abducted children to their nations of habitual residence for all further custodial proceedings, thereby restoring the status quo prior to the abduction and removing a major incentive for this harmful practice. Congress expressly provided for original and concurrent federal jurisdiction over these petitions for return. In recent years, however, a number of federal district courts have been abstaining from hearing such claims where there is already a custody proceeding ongoing. This practice has the effect of forcing a plaintiff, usually a foreigner, to litigate these sensitive matters in a potentially hostile state forum. In this Note, Ion Hazzikostas argues that district courts have erred in their abstention in most such cases, to the detriment of the same children the Abduction Convention was enacted to protect. A more nuanced standard would better serve the interests of the Convention by removing needless barriers to return, while still limiting the potential for either party to gain an unfair advantage through jurisdictional manipulation.

In Gibbons v. Ogden, the first Supreme Court decision to discuss the Commerce Clause, Chief Justice John Marshall endorsed the notion of a Dormant Commerce Clause but refused to adopt it as constitutional principle. In this article, Professor Norman Williams answers why Marshall hedged on the Dormant Commerce Clause. First, Marshall apprehended the need to provide a comprehensive articulation of the scope of Congress’s affirmative regulatory power under the Commerce Clause. Second, Marshall was wary of inserting the judiciary into another battle regarding the constitutional scope of state authority. This reassessment resolves an otherwise inadequately explained historical puzzle regarding the Marshall Court and sheds light upon contemporary debates regarding popular constitutionalism and the interpretive role of the Supreme Court.

Cash-assistance programs have long been a focus of both liberal and conservative efforts to make symbolic statements. In this regard, the 1996 dismantlement of federal entitlement to cash assistance was nothing new. Although the 1996 welfare law also made deep cuts to in-kind programs, such as food stamps, these programs had less symbolic significance and hence were lessoften the target of public attacks. This lower political profile gave the Food Stamp Program room to find positive ways to adapt to the key themes that drove the enactment of the 1996 welfare law.

In the 1996 welfare law’s wake, the Food Stamp Program might have emulated the transformation of cash-assistance programs. Alternatively, it might have adopted a defensive posture. Instead, its supporters transformed it from an adjunct to discredited cash welfare programs into a stable support for low-wage workers. This both helped meet a crucial need of low-income families and improved the program’s political appeal. It also demonstrated that the goals of promoting work, devolving authority to states, and safeguarding program integrity can be achieved in positive ways.

The new Food Stamp Program promotes work through incentives more than sanctions. Its incentive structure changed to encourage states to improve access for low-wage workers, and states received flexibility to make those kinds of innovations rather than ones that would destabilize the program’s national benefit structure. Additionally, enforcement efforts deemphasized minor accounting issues having little bearing on the program’s integrity. Ultimately, these efforts were so successful that President Bush and conservative Republican senators pushed substantial benefit increases through Congress. This success may be a model for the survival and expansion of other programs.

Courts interpreting Title VII have long treated race and ethnicity as biological, morphological concepts and discrimination as a reaction to a set of biologically fixed traits. Meanwhile, they have rejected claims concerning discrimination based on voluntarily chosen physical traits or “performed” behaviors and that communicate racial or ethnic identity. Yet race and ethnicity are effectively produced—that is, they do not exist until one is socially acknowledged as possessing socially coded racial or ethnic markers, whether they are fixed physical features, voluntary appearance choices, or behaviors. This Article argues that it is error to distinguish between Title VII cases concerning morphological as opposed to voluntary racially or ethnically marked features, as the discriminator’s motives and the effects of her behavior are the same. Moreover, the morphological model of race/ethnicity is fundamentally contradicted by contemporary biological and sociological studies on race, discrimination studies, and identity performance theories, which indicate that individuals actively work to “perform” racial and ethnic status regardless of, and sometimes in spite of their morphological traits. Drawing on these studies, this Article shows that courts must hear discrimination claims based on voluntary features if they are to provide a more credible analysis of modern forms of discrimination.

At the time of America’s constitutional origins, there was not a singular understanding of the proper relationship between the government and religion, but rather multiple understandings. Those multiple understandings are best understood through a close investigation of the experiences in each of the original states. This Article seeks to add the experience in Georgia—the thirteenth colony—to the larger discussion regarding the status of religious liberty in the various colonies and states in the eighteenth century.

From its founding in 1732 throughout the eighteenth century, Georgia was a place of both religious tolerance and religious pluralism. Georgia’s Royal Charter provided for liberty of conscience for all, and for the free exercise of religion by all except Roman Catholics. The Charter did not establish the Church of England or any other church. (Although the Church of England would later be established by law in 1758, it was, in practice, a weak establishment with little real ecclesiastical presence.) Between the Revolution and 1800, the new State of Georgia had three constitutions (1777, 1789, and 1798), each of which explicitly addressed religion and provided for varying levels of free exercise (including liberty of conscience) and disestablishment.

These principles of religious liberty that were reified and realized in the governing documents stemmed from the necessity of recognizing a variety of religious beliefs, for from early times the colony contained adherents of a number of religious faiths. These included Jews, Anglicans, Lutherans, Presbyterians, and others—who formed, according to one author, “a rich generation of religious ferment in the colony.” This admixture of religious adherents was welcomed—indeed, invited—to the new territory. And the various worshipers were not asked to conform to, nor required to support, the Church of England, but instead received governmental funding and support for their own endeavors (including land grants, salaries for ministers, and some control over church and civil governance).

By analyzing Georgia’s law and experience, this Article seeks to unearth and illuminate those principles of religious liberty valued in early Georgia. This Article reveals that early Georgians cherished liberty of conscience, free exercise, direct (but non-preferential) governmental support for religion, respect for religious pluralism, and non-discrimination on the basis of religion. Further, while Georgians gradually moved toward recognizing the value of disestablishment, there was never an intellectual adherence to a strict Jeffersonian ideal of “separation of church and state.” By adding Georgia’s experience in church-state relations to the larger conversation about religious liberty in the early Republic, this Article opens the conversation to a fuller discussion of the multiple understandings of religious liberty present from the beginning.

Over one million defendants pass through the criminal justice system every year, yet we almost never hear from them. From the first Miranda warnings, through trial or guilty plea, and finally at sentencing, most defendants remain silent. They are spoken for by their lawyers or not at all. The criminal system treats this pervasive silencing as protective, a victory for defendants. This Article argues that this silencing is also a massive democratic and human failure. Our democracy prizes individual speech as the main antidote to governmental tyranny, yet it silences the millions of poor, socially disadvantaged individuals who directly face the coercive power of the state. Speech also has important cognitive and dignitary functions: It is through speech that defendants engage with the law, understand it, and express anger, remorse, and their acceptance or rejection of the criminal justice process. Since defendants speak so rarely, however, these speech functions too often go unfulfilled. Finally, silencing excludes defendants from the social narratives that shape the criminal justice system itself, in which society ultimately decides which collective decisions are fair and who should be punished. This Article describes the silencing phenomenon in practice and in doctrine, and identifies the many unrecognized harms that silence causes to individual defendants, to the effectiveness of the criminal justice system, and to the democratic values that underlie the process. It concludes that defendant silencing should be understood and addressed in the context of broader inquiries into the (non)adversarial and (un)democratic features of our criminal justice system.

An increasingly prominent strain of legal commentary warns that the democratic good of robust political competition is endangered by legislators’ penchant for enacting, and preserving, statutes that entrench incumbent officials and dominant political parties. This political entrenchment dynamic is thought to warrant external regulation of election law by a politically insulated constitutional court or regulatory commission. Drawing on recent institutional innovations in Australia, Canada, and the United Kingdom, this Article suggests a different institutional remedy for the entrenchment problem: a permanent advisory commission, authorized to draft bills for the legislature to consider under a closed-rule procedure, or for the citizenry to address by referendum. The approach suggested here provides an answer to the two main criticisms that have been lodged against external regulation in the interest of fair political competition: that such regulation is democratically illegitimate, and that the regulator itself is likely to be captured by political insiders. The standing advisory commission can be expected to do a better job of identifying and pursuing normatively appropriate reforms than would an otherwise similar external regulator. The very tenuousness of the advisory commission’s de facto power to reform the law (depending as it does on public opinion) should make the body a more reliable agent of the citizenry’s interests and concerns. And in the event that the body falls under the sway of political insiders, it stands to do much less damage than a captured external regulator, thanks to the voters’ freedom to ignore it.

In this article, Professors Lindquist and Cross empirically study the effect of precedent on judicial decisionmaking. The framework for their analysis is Ronald Dworkin’s “chain novel” metaphor, an influential theory of the role of precedent whose validity has not previously been empirically tested. The chain novel metaphor suggests that the judicial use of precedent can be likened to a group of authors writing a novel seriatim, in which the accumulation of chapters increasingly constrains the choices and freedom of subsequent writers. Precedent is one of the most important areas of legal research, but currently there is no dominant working theory, and only limited empirical evidence, about its role in judicial decisionmaking.

The first part of the authors’ study examines cases of first impression using a statistical model of judicial voting data from four United States Courts of Appeals between 1984 and 1988. Examining the influence of ideology on judicial decisionmaking in cases of first impression, and controlling for a number of external factors such as regional effects and litigant identity, Lindquist and Cross find that judicial ideology plays a statistically more significant role in cases where judges acknowledge that they are not bound by precedent (as in cases of first impression) than in cases where prior precedent exists. These findings provide preliminary support for the chain novel theory, as the existence of prior precedent appears to limit the degree to which judges are free to decide cases based on their own ideological preferences.

The second part of this study tests the evolving role of precedent over time. Lindquist and Cross examine over seven hundred decisions from five United States Courts of Appeals interpreting the phrase “under color of’ state law from 42 U.S.C. § 1983. To test whether the gradual accretion of precedent increasingly constrains judicial behavior, the authors select cases over a thirty-year period subsequent to the Supreme Court’s liberalization of the § 1983 cause of action in 1961. Controlling for other factors, including potential agenda effects based on the kinds of cases brought before the courts, Lindquist and Cross find that the importance of precedent in judicial decisionmaking is initially stable or increasing over time. However, contrary to the chain novel hypothesis, as the number of prior decisions grows further, precedent plays a decreased role. Judges appear to be relatively more free to decide cases based on their ideological preferences as precedents accumulate, rather than (as Dworkin suggests) more constrained. The study thus provides only limited support for the chain novel theory of judicial decisionmaking, finding that judges are indeed more free to decide based on their ideological preferences where no prior precedents exist. However, the fact that judicial discretion expands with the gradual accretion of precedent suggests that the chain novel thesis does not describe fully the operation of U.S. law.