Volume 84, Number 4

Modern contract law is governed by a two-stage adjudicative regime—an inheritance of the centuries-old conflict between law and equity. Under this regime, formal contract terms are treated as prima facie provisions that courts can override by invoking equitable doctrines so as to substantially “correct” the parties’ contract by realigning it with their contractual intent. This ex post judicial determination of the contractual obligation serves as a fallback mechanism for vindicating the parties’ contractual intent whenever the formal contract terms fall short of achieving the parties’ purposes. Honoring the contractual intent of the parties is thus the central objective of contract law. Yet little scholarly attention has been given to the structure of contractual intent. Courts naturally equate contractual intent with the parties’ contractual objectives, which we call the “contractual ends” of their collaboration. But reaching agreement on a shared objective is only the first step to designing an enforceable contract. Thereafter, the parties must create the particular rights and duties that will serve as their “contractual means” for achieving their shared ends. The thesis of this Article argues that the current regime of contract adjudication conflates the parties’ contractual means with their contractual ends. In so doing, it reduces the range of contractual arrangements to which contract law gives effect, thereby potentially depriving commercially sophisticated parties of essential tools for contract design. Sophisticated actors engage in ex ante determinations of their means of enforcement, choosing whether enforcement is to be either legal or relational and whether legal enforcement should rely on either rules or standards. Both theory and available evidence suggest that such parties would prefer a default rule that strictly enforces formal contract doctrine unless they have expressly indicated their intent to delegate hindsight authority to a court. By eliminating the risk that courts will erroneously infer the parties’ preference for ex post judicial intervention, such a regime increases the reliability of formal contract terms and enhances the parties’ control over the content of their contract.

At the core of the economic analysis of law lies the concept of expected sanctions, which are calculated by multiplying the severity of the sanction that is applied to wrongdoers by the probability that it will be applied. This probability is the product of several sequential probabilities involving the different actors responsible for sanctioning wrongdoers (e.g., police, prosecutors, judges, jurors, etc.). Generally, legal economists treat different legal probabilities as fungible, simply multiplying them much like any other sequential probabilistic situation. This Article challenges this assumption, demonstrating that people perceive and are affected by different types of legal probabilities in distinct ways. More specifically, it shows that uncertainty associated with the substance of the law and uncertainty associated with imperfect enforcement should not be treated equivalently.

To demonstrate this point, this Article presents a series of between-subjects experimental surveys that measure and compare participants’ attitudes toward compliance in conditions of uncertainty. Study participants—several hundred students from Israel and the United States—answered questions in the context of one of several variations on the same hypothetical scenario. While the expected sanction was the same in each variation, the source of uncertainty differed. These studies confirmed that people are less likely to comply when uncertainty stems from the imprecision of law’s substance than when uncertainty stems from the imperfect enforcement of clear law.

The Eighth Amendment prohibits cruel and unusual punishment, but its normative force derives chiefly from its use of the word cruel. For this prohibition to be meaningful in a society where incarceration is the primary mode of criminal punishment, it is necessary to determine when prison conditions are cruel. Yet the Supreme Court has thus far avoided this question, instead holding in Farmer v. Brennan that unless some prison official actually knew of and disregarded a substantial risk of serious harm to prisoners, prison conditions are not “punishment” within the meaning of the Eighth Amendment. Farmer’s reasoning, however, does not withstand scrutiny. As this Article shows, all state-created prison conditions should be understood to constitute punishment for Eighth Amendment purposes. With this in mind, this Article first addresses the question of when prison conditions are cruel, by considering as a normative matter what the state is doing when it incarcerates convicted offenders as punishment and what obligations it thereby incurs toward its prisoners. This Article then turns to the question of constitutional implementation and considers what doctrinal standards would best capture this understanding of cruel conditions.

At the heart of the argument is the recognition that the state, when it puts people in prison, places them in potentially dangerous conditions while depriving them of the capacity to provide for their own care and protection. For this reason, the state has an affirmative obligation to protect prisoners from serious physical and psychological harm. This obligation, which amounts to an ongoing duty to provide for prisoners’ basic human needs, may be understood as the state’s carceral burden. This, at its core, is the problem with Farmer’s recklessness standard: It holds officers liable only for those risks they happen to notice—and thereby creates incentives for officers not to notice—despite the fact that when prison officials do not pay attention, prisoners may be exposed to the worst forms of suffering and abuse. As this Article shows, either a heightened negligence standard on which a lesser burden would attach to those claims alleging macro-level failures of care or a modified strict liability approach would be far more consistent with the possibility of meaningful Eighth Amendment enforcement. Unfortunately, by encouraging judges to deny the existence of cruel treatment in the prisons, the prevailing doctrinal regime instead makes the judiciary into yet another cruel institution vis-a`-vis society’s prisoners.

First and Fourth Amendment Limits on National Security Letters

Congress’s passage of the Patriot Act after 9/11 expanded the Federal Bureau of Investigation’s (FBI) information-gathering authority to issue national security letters (NSL). Without any judicial review, the FBI issues NSLs to telecommunications providers to obtain customer subscriber information, including sources of payment, records of Internet activity, addressees and subject lines of emails, websites visited, and search queries. Because a subscriber has voluntarily given the data to a third party, the NSL is not considered a “search” for Fourth Amendment purposes, under the so-called “third-party doctrine.” To overcome this constitutional shortcoming, commentators have argued that the chilling effect NSLs have on the exercise of free speech makes such investigations suspect under the First Amendment.

Despite the appeal of the First Amendment argument, this Note argues that a subscriber’s free speech claim against an NSL faces more significant doctrinal hurdles than scholars have recognized: The First Amendment does not directly protect privacy, making a chilling effect claim hard to sustain. Furthermore, the standard of review in First Amendment cases may be too deferential to the government because the Patriot Act does not directly target speech, only data related to communicative activity. Instead, this Note proposes statutory reform for more enhanced judicial review and considers how the First Amendment could be used, not as an independent challenge, but rather as a basis for modifying the third-party doctrine. The Note concludes that the concern for chilling free speech is valid, and although First Amendment doctrine may not provide the means to defeat an NSL, concern for free speech interests could provide courts with a rationale for finding a reasonable expectation of privacy in Internet data, thus strengthening our currently impoverished Fourth Amendment safeguards.