Articles

In this Article, I propose a theory of how rational, ideologically motivated judges might choose interpretive methods, and how rational, ideologically motivated laymen—legislators, litigation organizations, lobbyists, scholars, and citizens—might respond. I assume, first, that judges not only have ideological preferences but also want to write plausible opinions. Second, I assume that every method of statutory or constitutional interpretation has a “most plausible point” along a spectrum of possible decisions in a given case. As a result, if a judge decides to use any particular interpretive method, that method will pull him towards its “most plausible point,” possibly making him deviate from his own ideal point.

When a judge can choose an interpretive method, he selects the one that (taking these deviations into account), among other things, allows him to stay as close as possible to his favored outcome. Thus, any given method is chosen only by judges whose ideal points, roughly speaking, are not too distant from that method’s most plausible point. This behavior creates a selection bias. An interpretive method’s political valence under a regime of free interpretive choice thus differs systematically from what it would look like if that method were mandatory. As a result, one might favor mandating an interpretive method even though one is politically closer to the current practitioners of a different method.

A judge can choose not only which interpretive method to use but also whether to use the same method from case to case. This Article argues that an individual judge’s choice of interpretive method does not usually substantially affect the methods that other judges use. Therefore, even though ideologically motivated judges (or litigation groups) might want to make the method they prefer in most cases mandatory for everyone, it can often be rational for these judges to deviate from that preferred method in instances where a different method would produce a more appealing outcome.

One of the bedrock principles of contemporary international law is that victims of human rights violations have a right to an “effective remedy.” International courts usually hold that effective remedies must at least make the victim whole, and they sometimes adopt even stronger remedial rules for particular categories of human rights violations. Moreover, courts have refused to permit departure from these rules on the basis of competing social interests. Human rights scholars have not questioned this approach, frequently pushing for even stronger judicial remedies for rights violations. Yet in many cases, strong and inflexible remedial rules can perversely undermine human rights enforcement. Institutional constraints often make it impractical or highly costly for international courts to issue remedies for the violations they recognize. Inflexible remedial rules raise the collateral costs of providing remedies and often drive courts to circumvent those costs by narrowing their substantive interpretations of rights, raising the prejudice threshold required to trigger a remedy or erecting procedural hurdles that allow them to avoid considering the claim at all. This Article illustrates these “remedial deterrence” effects primarily with examples from the procedural rights case law of the International Criminal Tribunals for Rwanda and for the former Yugoslavia—two courts that face particularly stark remedial costs. It then argues that similar dynamics are likely at other international courts, though their degree, form, and consequences will vary based on each court’s particular objectives and constraints.

Although some degree of remedial deterrence is inevitable and legitimate, extreme remedial-cost pressures—like those often present in international criminal proceedings—result in severe doctrinal distortions that subvert the purpose of international courts’ strong remedial rules. Because victims cannot be granted lesser remedies, they often receive no remedy at all. This overkill effect is magnified because the doctrinal distortions spill over to other cases lacking similar remedial costs and to domestic courts and other actors that follow international judicial precedent, even though they do not share the same institutional constraints. To mitigate these consequences, this Article makes two sets of recommendations. First, international courts’ structures and procedures should be designed to avoid excessive remedial deterrence pressures. This Article offers specific proposals for international criminal tribunals. Second, international courts should modify their approach to the effective remedy requirement, allowing some degree of equitable balancing of interests. Such an approach would promote judicial candor and enable courts to avoid untenable remedial costs without unduly distorting other doctrines.

Speech is generally considered to be either private or governmental, and this dichotomy is embedded in First Amendment jurisprudence. However, speech is often neither purely private nor purely governmental but rather a combination of the two. Nonetheless, the Supreme Court has not yet recognized mixed speech as a distinct category of speech. This Article suggests considerations for identifying mixed speech and exposes the shortcomings of the current approach of classifying all speech as either private or governmental when determining whether viewpoint restrictions pass First Amendment muster. Treating mixed speech as government speech gives short shrift to the free speech interests of speakers and audiences. According it private speech status overlooks compelling state interests, including the need to avoid establishment clause violations. This Article concludes that a better approach to mixed speech is to subject viewpoint restrictions to intermediate scrutiny. This will allow a more nuanced and transparent balancing of interests than the present either-or approach.

Procedural evolution in complex litigation seems to have left the civil jury behind. Reliance on aggregating devices, such as multidistrict litigation and class actions, as well as settlement pressure created by “bellwether” cases, has resulted in cases of national scope being tried by local juries. Local juries thus have the potential to impose their values on the rest of the country. This trend motivates parties to forum-shop, and some commentators suggest eliminating jury trials in complex cases altogether. Yet the jury is at the heart of our uniquely American understanding of civil justice, and the Seventh Amendment mandates its use in federal cases. This Article makes a bold proposal to align the jury assembly mechanism with the scope of the litigation: In cases of national scope, juries would be assembled from a national pool. This proposal would eliminate incentives for parties to forum-shop, and it would make the decisionmaking body representative of the population that will feel the effects of its decision. The Article argues that we would see greater legitimacy for decisions rendered by a national jury in national cases. Moreover, it argues that geographic diversification of the jury would enhance the quality of decisionmaking. Finally, national juries would preserve the functional and constitutional values of citizen participation in the civil justice system.

Intellectual property protects investments in the production of information, but the relevant literature has largely neglected one type of information that intellectual property might protect: information about the market success of goods and services. A first entrant into a market often cannot prevent other firms from free riding on the information its entry reveals about consumer demand and market feasibility. Despite the existence of some first-mover advantages, the incentives to be the first entrant into a market may sometimes be inefficiently low, thereby giving rise to a net first-mover disadvantage that discourages innovation. Intellectual property may counteract this inefficiency by providing market exclusivity, thus promoting earlier market entry and increasing the level of entrepreneurial activity in the economy. The goal of encouraging market experimentation helps to explain certain puzzling aspects of current intellectual property doctrine and provides a coherent basis for appreciating some of the current criticisms of intellectual property rights.

Trademark litigation typically unfolds as a battle between competing sellers who argue over whether the defendant’s conduct is likely to confuse consumers. This is an unfair fight. In the traditional narrative, the plaintiff defends her trademark while simultaneously protecting consumers at risk for confusion. The defendant, relatively speaking, stands alone. The resulting “two-against-one” storyline gives short shrift to the interests of nonconfused consumers who may have a stake in the defendant’s conduct. As a result, courts are too receptive to nontraditional trade- mark claims where the case for consumer harm is questionable. Better outcomes are available by appreciating trademark litigation’s parallel status as a conflict between consumers. This view treats junior and senior trademark users as proxies for different consumer classes and recognizes that remedying likely confusion among one group of consumers may cause harm to others. Focusing on the interests of benefited and harmed consumers also minimizes the excessive weight given to moral rhetoric in adjudicating trademark cases. Consideration of trademark’s consumer-conflict dimension is therefore a useful device for critiquing trademark’s expansion and assessing future doctrinal developments.

Private equity fund managers take a share of the profits of the partnership as the equity portion of their compensation. The tax rules for compensating general partners create a planning opportunity for managers who receive the industry standard “two and twenty” (a two percent management fee and twenty percent profits interest). By taking a portion of their pay in the form of partnership profits, fund managers defer income derived from their labor efforts and convert it from ordinary income into long-term capital gain. This quirk in the tax law allows some of the richest workers in the country to pay tax on their labor income at a low rate. Changes in the investment world—the growth of private equity funds, the adoption of portable alpha strategies by institutional investors, and aggressive tax planning—suggest that reconsideration of the partnership profits puzzle is overdue.

While there is ample room for disagreement about the scope and mechanics of the reform alternatives, this Article establishes that the status quo is an untenable position as a matter of tax policy. Among the various alternatives, perhaps the best starting point is a baseline rule that would treat carried interest distributions as ordinary income. Alternatively, Congress could adopt a more complex “Cost-of-Capital Method” that would convert a portion of carried interest into ordinary income on an annual basis, or Congress could allow fund managers to elect into either the ordinary income or “Cost-of-Capital Method.” While this Article suggests that treating distributions as ordinary income may be the best, most flexible approach, any of these alternatives would be superior to the status quo. These alternatives would tax carried interest distributions to fund managers in a manner that more closely matches how our tax system treats other forms of compensation, thereby improving economic efficiency and discouraging wasteful regulatory gamesmanship. These changes would also reconcile private equity compensation with our progressive tax system and widely held principles of distributive justice.

Governments often deliver social welfare benefits through “tax expenditures,” which are provisions of the tax code (such as home mortgage deductions) designed to serve social policy objectives. This Article considers the criteria for granting tax expenditures to individuals who work outside the state where they reside. International tax norms currently assign the primary entitlement to tax labor income to the state where the taxpayer works, but they assign the obligation to confer personal tax expenditures exclusively to the state where the taxpayer resides. This Article argues that the disjunction between the entitlement to tax and the obligation to provide tax benefits affects cross-border labor mobility and has important distributive implica- tions for taxpayers and states. In constructing these arguments, this Article introduces the concepts of “labor export neutrality” and “labor residence neutrality” as tools for analyzing government policies that affect global labor mobility. A policy is labor export neutral if it does not distort taxpayers’ decisions about where to work. A policy is labor residence neutral if it does not distort taxpayers’ decisions about where to reside.

Defenders of sex and race inequality often contend that women and people of color are better off with fewer rights and opportunities. This claim straddles substantive debates that are rarely considered together, linking such seemingly disparate disputes as the struggles over race-based affirmative action, antiabortion laws, and marital rape exemptions. The argument posits that women and people of color attempting to secure expanded rights and opportunities do not understand their own best interests and do not realize that they benefit from limits on their prerogatives and choices. Indeed, proponents of this argument insist that restricting the rights and opportunities available to women and people of color helps everyone: the people misguidedly seeking more rights and opportunities, the people opposing those claims, and society as a whole. The beguiling conclusion is that the law need not decide between conflicting demands because all parties share aligned interests. I call this effort to assert social solidarity in the face of social conflict the “mutual benefits” argument.

This Article reveals and analyzes the mutual benefits argument to make three points. First, judges, legislators, and commentators defending contemporary laws and policies frequently claim that restricting rights and opportunities protects women and people of color. The claims appear across a range of contexts, but their common structure has remained hidden from view and critical scrutiny. Second, modern mutual benefits discourse has deep historical roots in widely repudiated forms of discrimination, including slavery, racial segregation, and women’s legalized inequality. Third, the historical deployment of mutual benefits arguments to defend pernicious discrimination creates reason for caution in considering contemporary mutual benefits claims that are now accepted quickly with little evidence, investigation, or debate. Mutual benefits discourse historically operated to rationalize and reinforce discriminatory practices that the nation has since disavowed. Modern mutual benefits arguments must be evaluated carefully or they risk shielding subordination once again.

Why do migrants enjoy some of the rights associated with citizenship? Existing accounts typically answer this question in terms of obligation—of a duty on the part of states to confer citizenship. Moreover, scholars tend to lump together the rights conventionally associated with citizenship when they answer this question. In contrast, this Article disaggregates the rights associated with citizenship, asks what both states and migrants want, and inquires into how the suite of rights associated with citizenship might advance those interests. States want to encourage migrants to enter their territory and to make country-specific investments, but states also have an interest in being able to remove migrants or make their lives less comfortable if circumstances change. However, migrants will not enter and make country-specific investments if the state can easily remove them or change the conditions in which they live. Accordingly, the optimal “migration contract” between the state and the migrant reflects the trade-offs between commitment and flexibility. We discuss ways in which basic rights to liberty and property, political rights including voting, and other rights may embody the optimal contract in different circumstances.