Articles

If the federal government has constitutional power to address a social ill, and hence has power under the Supremacy Clause to preempt state, local, and common law regimes, is there a principled rationale for distinguishing federal standards that set a federal floor or ceiling? At first blush, the two appear to be mere flip sides of the same federal power: The choice of a floor reflects a goal of minimizing risk, while ceilings reflect concern with excessively stringent regulation.

This Article argues, however, that these two regulatory choices are fundamentally different in their institutional implications. Floors embrace additional and more stringent state and common law action, while ceilings are better labeled a “unitary federal choice” due to how they preclude any other regulatory choice by state regulators and also eliminate the possibility of the different actors, incentives, and modalities of information elicitation and proof that common law settings provide. Advocates of free markets respond that this is precisely the idea—regulatory certainty is enhanced with a unitary federal choice, allowing manufacturers to plan with confident knowledge of the regulatory terrain, unbuffeted by an array of uncoordinated actors.

Debate over floors versus ceilings was, until recently, largely hypothetical, due to the rarity of federal imposition of ceilings. During the past year, however, in settings ranging from product approvals to regulation of risks posed by chemical plants to possible climate change legislation regarding greenhouse gases, legislators and regulators have embraced the broad, preemptive impact of unitary federal choice preemption. The federal action regarding such risks would be the final regulatory choice. But under what theory of regulation and legislation can one be confident that placing all decisionmaking power in one institution at one time will lead to appropriate standard setting? In fact, advocates of risk regulation, “experimentalist regulation” scholars, and skeptics about the likelihood of public-regarding regulation all call for attention to pervasive risks of regulatory failure. Agency and legislative inertia, information uncertainties and asymmetries, outdated information and actions, regulatory capture, and a host of other common regulatory risks create a substantial chance of poor or outdated regulatory choice.

Considering these pervasive risks of regulatory failure, the principled distinctions between floor and ceiling preemption become apparent. Vesting all decisionmaking power in one institution can freeze regulatory developments. Unitary federal choice preemption is an institutional arrangement that threatens to produce poorly tailored regulation and public choice distortions of the political process, whether it is before the legislature or a federal agency. Floor preemption, in contrast, constitutes a partial displacement of state choice in setting a minimum level of protection, but leaves room for other actors and additional regulatory action. Floors anticipate and benefit from the institutional diversity they permit. This Article closes by showing how the institutional diversity engendered by retaining multiple layers of law and regulatory actors creates conditions conducive to reassessment and adjustment of rigid or outdated regulation.

This Article offers a new understanding of the dynamic between the Supreme Court and Congress. It responds to an important literature that for several decades has misunderstood interbranch relations as continually fraught with antagonism and distrust. This unfriendly dynamic, many have argued, is evidenced by repeated congressional overrides of Supreme Court cases. While this claim is true in some circumstances, it ignores the friendly relations that exist between these two branches of government—relations that may be far more typical than scholars suspect.

This Article undertakes a comprehensive study of congressional responses to Supreme Court tax cases and makes a surprising finding: Overrides, although the main focus of the extant literature, account for just a small portion of the legislative activity responding to the Court. In fact, Congress is nearly as likely to support and affirm judicial decisionmaking through the codification of a case outcome as it is to reverse a decision through a legislative override. To investigate fully the nature of congressional oversight of Supreme Court decisionmaking, this Article undertakes both qualitative and quantitative analyses of different types of legislative review of Supreme Court decisions—examining codifications and citations, as well as overrides, in legislative debates, committees, and hearings. The result is a series of important and robust findings that challenge and build on the Court-Congress literature, identifying the legal, political, and economic factors that explain how and why legislators take notice of Supreme Court cases.

The study reveals a complex and nuanced interbranch dynamic and shows that the Justices themselves affect the legislative agenda to a greater extent than previously understood. This result challenges scholars who have questioned whether the Supreme Court should have jurisdiction over complex issues, such as those in the economic context, in which the Justices may lack sufficient training. This Article argues that scholars have little need to worry about Court decisionmaking in these areas: Not only do legislators routinely review the Court’s decisions, but they also frequently confirm the outcomes as valuable contributions to national policymaking via the codification process.

The growing use of brain imaging technology to explore the causes of morally, socially, and legally relevant behavior is the subject of much discussion and controversy in both scholarly and popular circles. From the efforts of cognitive neuroscientists in the courtroom and the public square, the contours of a project to transform capital sentencing both in principle and in practice have emerged. In the short term, these scientists seek to play a role in the process of capital sentencing by serving as mitigation experts for defendants, invoking neuroimaging research on the roots of criminal violence to support their arguments. Over the long term, these same experts (and their like-minded colleagues) hope to appeal to the recent findings of their discipline to embarrass, discredit, and ultimately overthrow retributive justice as a principle of punishment. Taken as a whole, these short- and long-term efforts are ultimately meant to usher in a more compassionate and humane regime for capital defendants.

This Article seeks to articulate, analyze, and provide a critique of this project according to the metric of its own humanitarian aspirations. It proceeds by exploring the implications of the project in light of the mechanics of capital sentencing and the heterogeneous array of competing doctrinal rationales in which they are rooted. The Article concludes that the project as currently conceived is internally inconsistent and would, if implemented, result in ironic and tragic consequences, producing a death penalty regime that is even more draconian and less humane than the deeply flawed framework currently in place.

This Article argues that diversity jurisdiction was intended to funnel politically significant litigation into the federal courts principally because federal officials would have the power to dictate the composition of federal juries. All existing accounts for the origins of diversity jurisdiction ultimately rely upon putative differences between the state and federal benches for their explanations of the jurisdiction’s origin. This emphasis on the bench is anachronistic, however, because the jury possessed far more power than the bench to decide cases in eighteenth-century American courts. American juries during this period customarily had the right to decide issues of law as well as fact and were largely beyond the control of the bench. The Framers saw state court juries—independent bodies of citizens with almost unfettered power to resolve legal disputes—as one of the greatest dangers in allowing ordinary citizens too much control over the governance of the nation. By wresting adjudicative power out of the hands of state court juries and bestowing it upon federal juries whose compositions could be tightly controlled by federal officials, diversity jurisdiction accomplished the Constitution’s overarching purpose of checking the operation of “unrestrained” democracy in the states.

Once the federal courts were established, federal officials controlled the composition of federal juries in several ways. In most districts, federal marshals dictated the composition of federal juries by hand-selecting jurors of their choice. In addition, Congress ensured that the political, economic, and social characteristics of federal juries would differ dramatically from their state counterparts by providing that the federal courts would draw their juries overwhelmingly from the urban, commercial centers of the nation. The state courts, by contrast, drew their juries predominantly from the agrarian populations living outside those centers. It is highly unlikely that this pervasive control over the composition of federal juries was an unintended consequence of the Constitution. Instead, as this Article argues, the evidence strongly suggests that the federal officials’ control over the composition of federal juries constituted the single most important impetus behind the creation of diversity jurisdiction and a significant rationale for the establishment of the lower federal courts.

A class action can only bind class members who are “adequately represented,” and thus a class action court necessarily determines representational adequacy. But should class members who were not an active part of that proceeding be able to relitigate adequacy in a collateral forum at a later date so as to evade the binding effect of the class judgment? Courts and scholars have generated a bipolar response to that question, with one side arguing that full relitigation is required by the constitutional nature of the question and the other insisting that no relitigation is permitted because of the issue-preclusive effect of the class court’s holding. Despite the richness of this debate, myriad specific questions about the availability, substance, and procedural details of the relitigation opportunity remain unexamined. In this Article, Professor Rubenstein expands the conversation outward by comparing class action law’s approach to relitigation of adequacy of representation with habeas corpus’s approach to relitigation of ineffective assistance of counsel claims in criminal cases. Using two recent, seemingly unconnected Supreme Court cases—one from each field—as case studies, Professor Rubenstein explains how these cases in fact raise remarkably similar questions. Specifically, the comparison reveals that habeas provides a relatively clear, rule-based system that specifies when—and according to what procedural rules—relitigation is available. Professor Rubenstein concludes by arguing that there are lessons for class action law in habeas’s approach: a method for considering when relitigation is appropriate that avoids the extremes of either “always” or “never”; a rule system that helps identify issues (such as substantive standards, degrees of deference, burdens of proof, and defaults) that have yet to be carefully examined in class action law; and a template for balancing the competing policy concerns at issue. Without defending current habeas doctrine, and without pretending that habeas and class actions are overtly similar, the Article nonetheless demonstrates that class action law’s relitigation problem can learn something through a close look at criminal law’s relitigation solutions.

With a tiny handful of exceptions, common law jurisprudence is predicated on a “winner-take-all” principle: The plaintiff either gets the entire entitlement at issue or collects nothing at all. Cases that split an entitlement between the two parties are exceedingly rare. While there may be sound reasons for the all-or-nothing rule, in this Article we argue that there is a limited but important set of property, torts, and contracts cases in which an equal division of an entitlement should be adopted. The common element in these cases is a windfall—a gain or loss that occurs despite the fact that no effort to promote, prevent, or allocate it ex ante would be cost-justified or reasonable. We show that an equal division of disputed windfalls promotes both efficiency and fairness and also has the virtue of clarifying several tortured legal doctrines.

We also address and reject the standard objections to split-the-difference remedies. We demonstrate that the introduction of a splitting option is unlikely to distort judicial incentives, and that it is likely to improve the integrity of the judicial system. Counterintuitively, we show that giving judges the option to order a compromise remedy in windfall disputes is likely to reduce judicial error, rather than increase it, and that the valuation problems that attend the introduction of a split-the-difference rule are insignificant.

Despite decades of scholarship in law and economics, disagreement persists over the extent of employment discrimination in the United States, the correct explanation for such discrimination, and the normative implications of the evidence for law and policy. In part, this is because employment discrimination is an enormously complex phenomenon, and both its history and continued existence are closely linked to politics and ideology. However, some portion of this dispute can also be traced to the incomplete use of empirical evidence. Most economic theories of employment discrimination imply empirical relationships between discrimination and the market structure of particular industries and characteristics of their workforces. Yet empirical work has most typically focused on either specific industries or the economy as a whole, and little systematic evidence about market structure and patterns of actual employment discrimination claims exists. This Article compiles and analyzes an original data set comprised of industry-specific measures of employment discrimination claims, market conditions, and labor force characteristics. In so doing, this Article contributes to an emerging literature that tests the core theoretical positions in the law and economics of discrimination literature, which in turn promises to advance understanding of both the causes of and remedies for employment discrimination.

This Article addresses a fundamental issue underlying the U.S. tax system in the international context: the use of citizenship as a jurisdictional basis for imposing income tax. As a general matter, the United States is the only economically developed country that taxes its citizens abroad on their foreign income.

Despite this broad assertion of taxing jurisdiction, Congress allows citizens abroad to exclude from taxation a limited amount of income earned from working outside the United States. Influential lobbying groups, including businesses that employ significant numbers of U.S. citizens abroad, argue that this exclusion is necessary in order to keep American business competitive overseas. Recently, these groups have argued that modern developments, including lowered barriers to trade and the increased mobility of workers, strengthen this argument, and that the United States must allow an unlimited foreign earned income exclusion, or perhaps abandon citizenship-based taxation altogether, in order to remain competitive.

This Article analyzes how modern developments in the global economy affect the case for citizenship-based taxation. The Article concludes that recent globalization trends strengthen, rather than weaken, the case for taxing U.S. citizens living abroad. Moreover, it concludes that these modern developments weaken the case for giving preferential treatment to income earned by citizens working abroad.

Empirical scholars typically model the judicial hierarchy in terms of a principal-agent relationship in which the Supreme Court, the principal, sets policy and the lower federal courts, as agents, must faithfully implement that policy. The law is a signal—the means by which the Court communicates its preferences. This Article argues instead for recognizing the law as an independent normative force. Empirical scholars fail to take seriously the role of law because they reject as implausible formalistic accounts of its operation. This Article advances a more nuanced account of how law shapes the decisionmaking environment of the lower federal courts, one that focuses on the presence of discretion. It explores how different types of discretion afford distinct types of power over lawmaking and case outcomes, and how that discretionary power is allocated between district and appellate courts. Paying attention to discretion suggests features of the judicial hierarchy that are commonly overlooked in principal-agent models. For example, judges’ goals, and therefore their strategies, will vary depending upon whether they seek to influence law development or merely to shape case outcomes. The Article also questions the normative assumption, implicit in principal-agent models, that lower federal courts should decide cases in accordance with the policy preferences of the Supreme Court. Because judges inevitably have discretion when applying the law, a norm of compliance with superior court precedent does not necessarily require lower courts to follow the policy preferences of the Supreme Court. The reasons judicial discretion exists, such as allocating power within the judicial hierarchy, may argue against such a centralization of power in the Supreme Court.

In response to the broad scope of the Enron-era frauds, the federal government has adopted novel strategies to investigate and prosecute corporate crimes. This Article examines the use of stringent cooperation requirements and deferred prosecution agreements, pursuant to which corporate internal investigations have become extensions of government enforcement efforts. At the same time, liability has shifted markedly to the employee level: Over one thousand individuals have been indicted and convicted since the July 2002 creation of the Corporate Fraud Task Force, while few corporations have been charged. The convergence of corporate cooperation doctrine with the focus on individual targets results in significant unfairness for employees who are compelled to incriminate themselves in the context of internal investigations that are directed by the government. Because of the awkward partnering of public governmental investigations with private corporate compliance efforts, that normative burden on employees may not be offset by enforcement benefits. This Article suggests that the government’s application of a civil regulatory model to criminal cases creates distortions because individual liberty rather than a financial sanction is at stake, because prosecutors do not engage in negotiated governance, and because judicial oversight at the investigative stage is minimal. This Article also addresses the constitutional implications of outsourcing corporate criminal investigations and argues that employees interviewed by internal investigators pursuant to the terms of a pending deferred prosecution agreement should enjoy immunity analogous to the Garrity shield that protects public employees. Several strands of Fifth Amendment theory are consistent with the argument that economic pressure, such as the threat of job loss, can rise to the level of constitutionally significant coercion. When that pressure is brought to bear pursuant to a deferred prosecution agreement, it is delegated coercion, but may be attributed to the government as state action.