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Abstract:
Copyfraud is everywhere. False copyright notices appear on modern reprints of Shakespeare's plays, Beethoven's piano scores, greeting card versions of Monet's Water Lilies, and even the U.S. Constitution. Archives claim blanket copyright in everything in their collections. Vendors of microfilmed versions of historical newspapers assert copyright ownership. These false copyright claims, which are often accompanied by threatened litigation for reproducing a work without the owner's permission, result in users seeking licenses and paying fees to reproduce works that are free for everyone to use.

Copyright law itself creates strong incentives for copyfraud. The Copyright Act provides for no civil penalty for falsely claiming ownership of public domain materials. There is also no remedy under the Act for individuals who wrongly refrain from legal copying or who make payment for permission to copy something they are in fact entitled to use for free. While falsely claiming copyright is technically a criminal offense under the Act, prosecutions are extremely rare. These circumstances have produced fraud on an untold scale, with millions of works in the public domain deemed copyrighted, and countless dollars paid out every year in licensing fees to make copies that could be made for free. Copyfraud stifles valid forms of reproduction and undermines free speech.

Congress should amend the Copyright Act to allow private parties to bring civil causes of action for false copyright claims. Courts should extend the availability of the copyright misuse defense to prevent copyright owners from enforcing an otherwise valid copyright if they have engaged in past copyfraud. In addition, Congress should further protect the public domain by creating a national registry listing public domain works and a symbol to designate those works. Failing a congressional response, there may exist remedies under state law and through the efforts of private parties to achieve these ends.

Copyright, copyright misuse, public domain, fraud, licensing

Abstract:
The Bill of Rights originated as a constraint only on the federal government. As every law student learns, therefore, in the 1833 case of Barron v. Baltimore, the Supreme Court dismissed a Fifth Amendment takings claim against a state. This Article shows, however, that early state courts regularly invoked and applied the provisions of the Bill of Rights in reviewing state law and state executive action. Barron meant only that the federal courts would not apply the provisions of the Bill of Rights to the states. State courts could decide independently to apply those provisions against their own state governments, and the jurisdictional limits of the 1789 Judiciary Act shielded those state court decisions from Supreme Court review. Largely forgotten today, state court applications of the Federal Bill of Rights against state government represented a vibrant body of constitutional law in the early Republic. Restoring this history challenges the conventional account that states were mostly unconstrained until ratification of the Reconstruction-era amendments, and that only in the mid-twentieth century did courts begin to protect adequately the rights of individuals. Instead, early constitutional law was multifaceted, sophisticated, and innovative, with a diverse set of jurists invoking and applying an array of constitutional rules to keep government at all levels in check.

The history of the Federal Bill of Rights in the early state courts points also to some deficiencies of modern constitutional law. Compared to the antebellum era, constitutional law today is radically consolidated. Among other things, state courts cannot extend federal constitutional protections beyond the limits the Supreme Court itself sets; this leaves individuals with fewer places to turn to protect their rights. Consolidation is also inconsistent with federalism. The historical practice of allowing state courts leeway to interpret independently the Federal Constitution reflected the importance of state courts in our constitutional design and the benefits that accrue to the system as a whole when individual state courts are able to make different choices. In addition, consolidation has weakened state constitutional law, as developed and applied by the state courts. Incorporation of federal constitutional protections, as defined by the Supreme Court, has displaced state constitutional law as the principal source of individual rights. Rather than decide independently what provisions of their own state constitutions mean, state courts have tended to hew to the Supreme Court's understandings of analogous provisions in the Federal Constitution. State courts have lost their voices under the Federal Constitution and they have fallen out of practice speaking under their state constitutions. Finally, consolidation helps account for the enormous tension that is characteristic of our current regime when federal constitutional rights are, ultimately, dependent upon the decisions of the Supreme Court.

Bill of Rights, incorporation, federalism, judicial federalism, parity, state courts, federal jurisdiction, antebellum courts

Abstract:
The Constitution of the United States provides, in Article V, for its own amendment; but not every proposal for change is properly "an Amendment[] to this Constitution" within the meaning of Article V. Rather, there are substantive limitations on what can be accomplished as a constitutional amendment. The term amendment refers not to making any kind of change to the existing document, but to fine-tuning what is already in place. As the debates over the adoption of the Bill of Rights make clear, an amendment is not the pursuit of something new, but an intervention, shown by experience to be necessary in order to keep the Constitution on its original course. Some proposals for change so undermine the original document that they cannot be considered amendments and therefore cannot be achieved through the procedures of Article V. Any proposal to alter the Constitution through Article V requires evaluating not only the merits of the proposal, but also whether it is a proper use of the amendment process.

To say that the amendment provision of Article V is limited is not to conclude that the Constitution contains entrenched provisions that can never be changed and that it is therefore undemocratic. Americans may alter each and every provision of their Constitution, but they cannot always do so through Article V. Modifications that are more than mere amendments to the existing Constitution require higher lawmaking: the articulation of new principles by the citizenry in a period of constitutional politics, the kind that occur following a revolution or some other seismic event that alters our course going forward. One such seismic event was, of course, the Civil War, which did revisit and change the document that was ratified in 1788. The Reconstruction Amendments revised the 1788 Constitution in fundamental respects, putting in place a new and very different regime. Significantly, these changes were not achieved through the amendment procedures of Article V, and they far exceeded what could have been done through those procedures. Accordingly, the Civil War altered Article V itself, putting in place new limitations on the kinds of changes that could subsequently be accomplished as constitutional amendments. One particular transition stands out. Under the 1788 Constitution, no modification that undermined the autonomy of the states with respect to slavery could be accommodated as a constitutional amendment. Yet once Article V was reconstructed, no constitutional amendment could permit states to create within their borders sub-classes of people like slaves. This Article explores these changes and considers some recent proposed amendments in light of the Reconstruction limits.

The primary purposes of this Article are to restore the early understanding of Article V and to reject the view expressed by modern commentators that the Constitution should be kept largely immune from amendment. A constitutional amendment is a significant event that is not easily achieved, but it is less momentous than a fundamental change to the system of government that results from a revolution or civil war. Amending the Constitution is more serious and difficult than ordinary legislation, but it is much less so than a transformative act by We the People. Article V allows for - indeed invites - citizens to examine in an ongoing fashion the details of their constitutional arrangements and to correct those things that do not serve well the basic design. Rather than keep Article V locked away, beyond the reach of citizens, it is more faithful to the Constitution's design and to the project of self-government to make available the amendment procedure for its deliberately limited uses.

Constitutional amendments, Article V, Bill of Rights, Reconstruction, Fourteenth Amendment

Abstract:
This essay, part of a symposium honoring the work of the legal historian Lawrence M. Friedman, examines a basic issue that has never received much treatment in the history and understanding of American constitutional government: in the years following the ratification of the federal Constitution and the state constitutions, how was a constitutional culture created?

Constitutional culture includes such things as the disposition of regular citizens to recognize and accept that they are governed by a written document, one that creates institutions of government and sets limits on what the government may do; the accepted belief that the governing charter is created by the citizenry; the knowledge that the charter is not timeless, but rather that the citizens may change it or revoke it under certain circumstances; and the understanding that until the charter is changed we are bound by it and required to go along with its ultimate results even though we are free to disagree with them. Constitutional culture also includes the understanding that a constitution unifies a population beyond those in one's immediate sphere of acquaintance such that other people in other places are likewise governed by this written document and that, whatever our other differences, this is something we have in common.

Constitutional historians and theorists have never provided a very satisfying account of how it was that after the drafting and ratification of the federal and state constitutions, the population at large came to understand what these constitutions meant, accepted them as law, and went along with the arrangements that had been put in place and the consequences that followed.

The failure to appreciate the creation of a constitutional culture is a serious oversight. The ratifying generation, the very Americans who put in place these written charters, understood that it was not enough simply to write and adopt a constitution: if a constitution was going to last and thrive, it was crucial to have in place a constitutional culture - otherwise, the principles and institutions of constitutional government would be little more than words on paper.

The particular piece of the story this essay presents is how civic associations emerged in the early decades of the Republic as an important, perhaps the most important, mechanism for creating the American constitutional culture. During these early decades, civic associations were a powerful means for instilling in ordinary people the values and habits of constitutional government. Civic associations were also a nationalizing, unifying force, bringing together Americans from disparate states into a shared, common constitutional experience. Perhaps more than anywhere else, it was in civic associations that ordinary Americans, the people who were neither delegates to the 1787 Constitutional Convention in Philadelphia nor the draftsmen of state constitutions, learned the principles of constitutional government, developed and nurtured republican values, and came to understand themselves as American citizens who shared interests and a destiny with the inhabitants of distant towns and other states. In this sense, civic associations helped to make work the constitutions that were ratified in the early years of American independence. Civic associations created and embodied the constitutional culture that contributed in significant and lasting ways to the success of constitutional government.

The essay explores these developments by focusing on a representative case study: the town of Utica, New York. The essay also considers some implications for modern theories of constitutional government.

constitutional culture, constitutional history, civic associations, ordinary Americans, nationalism, republican government

Abstract:
Homeland security is a critical component of the War on Terrorism. In our federal system of government, who is responsible for securing the homeland? The U.S. Congress has made available to states and cities some funding for overtime and equipment, but it has not assumed responsibility for covering all of the security costs incurred locally. While deploying some federal personnel for domestic security, the Executive branch relies largely on state and local officials for the necessary manpower. Meanwhile, governors and mayors complain about the unfairness of asking them to shoulder the burden of preventing terrorist attacks that would affect the entire nation, pointing to the risks of refusing states and cities the resources they need. Yet residents of states and cities less vulnerable to attack are reluctant to contribute to the high costs of security efforts necessary in places like New York City and Washington, D.C.

Ratified in an age of insecurity, the U.S. Constitution provides clear guidance on the issue of responsibility for homeland security. The Protection Clause of Article IV requires the national government to safeguard states and their cities from attack, either by providing the necessary security or by paying the costs of security measures implemented locally. Although today largely forgotten, the Clause once maintained a prominent role in guiding federal efforts in fortifying coastal towns, securing the frontiers, and responding to foreign invasions and domestic insurrections. Examining how the Protection Clause governed early conceptions of national security - as well as early implementation of security efforts - unlocks a security constitution designed expressly to address many of the logistical concerns now raised by the War on Terrorism.

Finally, the U.S. Supreme Court's anticommandeering doctrine, based on the Tenth Amendment, should not limit the national government's ability to deploy modern state and local security personnel, like law enforcement, for counterterrorism work. Historically, the Protection Clause has allowed and even compelled the federal deployment of state militia - who, under the Constitution's several Militia Clauses, could be (and often were) deployed by the federal government for security purposes. Indeed, the Constitution specifically provides for and encourages this type of commandeering as a way to protect citizens from the national military taking over towns and cities.

homeland security, war on terror, terrorism, national security, protection, federalism

Abstract:
As Hurricane Katrina demonstrated, federalism can impede the government's ability to plan for and respond to emergencies. Many emergencies transcend federalist divisions of power and responsibility, rendering unclear which level of government should respond. In addition, while emergencies may require a coordinated response by local, state, and national government, getting different levels of government to work together in times of crises is difficult. Further, even when states and localities call for outside assistance, they tend to resist undue federal interference in their affairs; a national government that lacks experience working with local actors on the ground can find it difficult to implement relief programs. Given the widely recognized failures of the government's response to Katrina and the urgent need for reform, some federal officials have proposed that, in a future emergency, rather than try to work with state and local response personnel, the federal government should simply deploy the military to take over the relief effort. This Article presents an alternative solution: emergency commandeering. This solution would allow the federal government, when it responds to certain kinds of emergencies, to call into periods of mandatory federal service the emergency response personnel of the state in which the emergency occurs, and, if necessary, emergency response personnel from other states. These state employees - police, firefighters, emergency medical technicians, urban search and rescue teams, and public health specialists - would serve with compensation under the command of the President. Emergency commandeering allows the national government to mount an effective response, one that draws upon the skills and experiences of state and local personnel, without the hindrance of multiple command structures or other forms of state and local resistance. Emergency commandeering is authorized by the Constitution, consistent with federalism, and, compared to the alternative of sending the military into our streets, good for democracy.

emergencies, federalism, Katrina, terrorism, natural disaster, commandeering, homeland security, FEMA, states, New Orleans

Abstract:
Federalism impedes the government's ability to plan for and respond to emergencies. Emergencies often transcend federalist divisions of power and responsibility, rendering unclear which level of government should respond. Though many emergencies require a coordinated response by local, state, and national government, getting different levels of government to work together in times of crises is difficult. Even when states and localities call for outside assistance, they resist undue federal interference in their affairs; a national government that lacks experience working with local actors on the ground can find it difficult to implement relief programs.

Hurricane Katrina, causing extensive damage in the Gulf Coast region in August of 2005, vividly illustrated how federalism undermines an effective response to emergencies - with deadly results. Despite years of emergency planning in the wake of the terrorist attacks of 9/11, and ample warning in the days preceding Hurricane Katrina that it would cause widespread destruction, no government - national, state or local - adequately prepared vulnerable communities. After Katrina struck, the governmental response was inept. Local governments in New Orleans and other towns were overwhelmed, unable even to communicate with their personnel on the scene. State governments found their resources stretched to breaking point. The national government, cautious about appearing too proactive, delayed its response until specifically asked to help. Federal and state personnel, unaccustomed to working together, mounted independent responses to the hurricane's aftermath and operated without the benefits of a single command structure. State officials rebuffed federal requests to assume overall control of the response efforts. While people perished, officials argued about who was actually in charge.

Future emergencies - an unwarned detonation of a crude nuclear device in an American city, for instance - could easily dwarf Katrina's impact. Given the widely-recognized failures of the government's response to Katrina and the urgent need for reform, some federal officials have proposed a dramatic solution: in a future emergency, rather than try to work with state and local response personnel, the federal government should simply deploy the military to take over the relief effort. Over opposition from every state governor, in October 2006, Congress passed a bill giving the President authority to deploy military forces to states and localities following a natural disaster or other emergency where specified federal interests are put at risk. Though this new law is not a wholesale authorization to use military resources in times of emergencies, critics contend that any domestic deployment of soldiers undermines civil liberties.

This Article proposes an alternative solution to the problems federalism presents in times of emergencies. The proposal, which I call emergency commandeering, is based on some provisions of the Constitution that are today largely forgotten but that were used regularly in earlier years of the nation. Under my proposal, when the federal government responds to certain kinds of emergencies, it can call into periods of mandatory federal service the emergency response personnel of the state in which the emergency occurs and, if necessary, emergency response personnel from other states. During emergencies, these state employees - police, firefighters, emergency medical technicians, urban search and rescue teams, and public health specialists - would serve with compensation under the command of the President as Commander in Chief. Emergency commandeering allows the national government to mount an effective response, one that draws upon the skills and experiences of state and local personnel, without the hindrance of multiple command structures or other forms of state and local resistance. The Article sets out in detail how emergency commandeering would operate. It also shows why emergency commandeering is authorized by the Constitution, consistent with federalism, and, compared to the alternative of sending the military into our streets, good also for democracy.

emergencies, federalism, katrina, terrorism, natural disaster, commandeering, homeland security, FEMA, states, New Orleans

Abstract:
The Supreme Court is not always supreme.

For much of this nation's history, this statement was true as a matter of law. Today, it is true in practice.

By supremacy, I mean what most people mean when they talk about the Supreme Court: the authority to determine, for everyone else, and in particular for every other court, what the Constitution of the United States means and requires. The Court says that it is supreme in this sense, nearly everybody else agrees with the Court about this, and many people complain about it. Yet it is not true.

Instead, the authority to determine what the Constitution means has always been shared. The focus of this Article is on how the Supreme Court shares the authority with the state courts. State courts, the Article shows, have always exercised a good deal of authority to determine, independently and definitively, the meaning of the Constitution. Until the early twentieth century, this authority was formalized in the statutory law that governed the Court's appellate jurisdiction. Today, though that law has changed, in practice the state courts continue to hold and to exercise substantial authority on issues of federal constitutional law. To be sure, the Supreme Court can, and sometimes does, reverse a ruling of a state court on an issue of federal constitutional law and the state court is required to follow the Court's decision. Indeed, on some issues, the Court aggressively keeps the state courts (and the lower federal courts) in check. This Article does not challenge the supremacy of the Court in this sense. Rather, the claim made here is that there are areas of the law where state courts, as a practical matter, have the ability, whether they have noticed it or not, to determine what the Constitution means with little or no oversight by the Supreme Court. In this sense, the Court is not supreme because authority is shared.

Several factors, explored closely in this Article, account for the modern sharing of authority between the Supreme Court and the state courts. In part, it results from some limitations on the Court's power and ability to review cases from the state courts. In part, the Court itself has simply given up the interpretive function to state judges. At times, state courts are authoritative because authority is hidden. As a result, while authority is shared, the divisions are not always easy to identify. Historically, the law drew clear lines between the authority of the state courts and the authority of the Supreme Court. Today, while the lines are there, they can appear faint, overlapping, and circuitous. It is no wonder we have had trouble noticing them.

Once we see that authority to interpret the federal Constitution is shared, the world of constitutional law and politics looks wholly different. Hard-fought battles over who serves on the Supreme Court seem excessive. Marching to the Court in support of this right or against that claim is less consequential. The modern fascination with the Court's seventy-odd decisions each year - instantly reported, dissected, critiqued, turned into symposia - appears an almost unhealthy obsession. Divining the future by microscopic inspection of the Justices' every written and spoken word becomes improbable. None of this is to deny that the decisions of the Supreme Court are important. Most are important; some are momentous. However, when authority is shared, we should worry less about the Supreme Court, and more about what is happening to federal constitutional law as it is developed and implemented in the state courts and in other venues.

In addition to exploring the ways in which the Supreme Court is not supreme, and the consequences that result, this Article offers a proposal. Historically, the authority of state courts was formalized. It makes sense, the Article argues, to formalize the authority state courts exercise today in practice. A sensible first step would be a formal rule that state courts, called upon to rule on federal constitutional claims against state government, should be permitted to deviate from the rulings of the Supreme Court and to do so without fear of correction by that Court. The Article qualifies and limits this proposition in various ways. For example, state courts would be permitted to expand upon, but not to narrow, federal constitutional rights as construed by the Supreme Court, and state courts would have leeway in certain kinds of cases, but not others. Though there would still be some downsides that would need to be confronted, the basic idea is that the state courts would once again, as a formal matter, have some independent authority to interpret the federal Constitution.

state courts, federalism, habeas corpus, Judiciary Act, constitutional interpretation, federal courts, supremacy, judicial power, Supreme Court, judicial federalism

Abstract:
This essay was prepared for a symposium to celebrate the publication of Linda Greenhouse's book, Becoming Justice Blackmun: Harry Blackmun's Supreme Court Journey (2005).

The essay examines Justice Blackmun's view of juries. Conventional accounts of juries emphasize their value as fact-finders, guardians of liberty, and a source of legitimacy. By contrast, Blackmun thought juries were important principally as a component of democracy - juries represent an opportunity for citizens to participate in the workings of government. On this account, the task of the Supreme Court is to ensure juries are open for and conducive to participation, just as the Court safeguards the ability of citizens to vote.

Blackmun's perspective has important implications for the recent phenomenon of the vanishing jury and helps identify how the democratic benefits of juries might be recaptured today.

Blackmun, Greenhouse, Supreme Court, juries, participation, democracy

Abstract:
Fair use isn't working. As written by Congress and applied by the courts, the fair use law fails to give individuals sufficiently clear guidance to determine in advance whether their uses of copyrighted works are fair and therefore non-infringing. When the law does not regulate adequately, markets can supply the rules. Thus, copyright owners and prospective users of copyrighted works can - and do - negotiate over and enter into contracts specifying permissible uses. However, leaving fair use to the market is far from desirable. Fair use is not meant to be something that is sold and bought like other market goods. Fair use is free use. Nobody is meant to be paying for the privilege of using a copyrighted work in a manner that the law deems not to infringe the copyright in the work. Moreover, the fair use market is not a fair market. The failure of Congress and of the courts to provide clear guidance on the meaning of fair use permits copyright owners to leverage the vagueness of the law and persuade prospective users that virtually any unauthorized use constitutes copyright infringement - and that if the use is not paid for it will result in a lawsuit and substantial damages.

This article offers a new approach to fair use. It proposes a role for the one branch of the federal government that has so far been left out of the picture: the executive branch. In most areas of the law where clear legal directives are needed to guide behavior in particular contexts and where Congress and the courts are unable to supply the clarity, we turn to administrative agencies. An administrative agency can, and should, regulate fair use. Accordingly, the article offers two possible models of agency regulation. In the first model, an agency is responsible for generating regulations that determine what constitutes fair use in specific contexts as well as for preventing efforts to interfere with fair uses of copyrighted works. In the second model, an agency issues fair use regulations and determines prior to any copyright infringement claim being brought in court whether the use in question constitutes fair use. Agency regulation can bring much needed clarity and predictability to fair use in ways that neither Congress nor the courts are able to accomplish; an agency can also protect fair use in ways that the market does not.

copyright, fair use, administrative agencies, intellectual property, markets, agency regulation, copyright infringement, digital delivery, Kindle, licensing, software, e-books, NFL, overreaching. copyfraud, copyright abuse

Abstract:
This symposium essay challenges the claim that trade secret law can and should play an increased role in safeguarding intellectual property today. In our view, although trade secret law will continue to be useful in certain circumstances, it remains - and should remain - of limited significance. This is for two reasons. First, as a practical matter, the digital age makes trade secrets more vulnerable. It facilitates disclosure by demolishing barriers that once prevented access to and sharing of information. Likewise, the digital age also makes disclosure more costly. In the past, a leak could be contained. Today, mass disclosure, an irreversible loss, is just an e-mail away. Second, from a policy perspective, greater reliance on trade secrets presents the risk of overreaching; that is, the use of the law to claim protections beyond those the law actually confers. Overreaching, a problem found increasingly in other areas of intellectual property law, upsets the balance between intellectual property rights and the public domain. In arguing against the proposal for increased reliance on trade secrets, this article draws lessons from current trends in copyright law. Specifically, owners of creative works who are dissatisfied with the protections that copyright law confers are increasingly turning to contract law to augment their rights and claim protections beyond those that copyright law itself provides. These actions undermine the public domain. The experience of using contract law to augment copyright law highlights similar public costs that may result from aggressive use of trade secret law to augment patent protections. A diminished role for trade secrets, which is likely in the digital age, would therefore be a welcome development. More generally, trade secret law is not on par with patent law. Federal law expresses a clear preference for the inventor who discloses an invention to the public and obtains a patent over the inventor who keeps the invention a secret. State trade secret law must not undermine the policy of disclosure that Congress has adopted.

patents, trade secrets, overreaching, patent reform,trade secret law, digital age, espionage, theft, leaks

Abstract:
In debating the continued usefulness of a federal system of government, courts and commentators have identified the economic and public policy rationales for federalism, the possible democratic benefits of a dual system of government, and the role of federalism in protecting individual rights. But one important aspect of federalism has so far been overlooked in these debates. This Article argues that federalism also promotes the kinds of social relationships that allow citizens to overcome collective action problems and get things done. That is, federalism has value because it promotes social capital: features of social organization such as trust, norms, and networks that can improve the efficiency of society by facilitating coordinated action. Federalism promotes social capital because dividing power between the national government and the states provides greater opportunities for citizen groups to influence politics and for individual citizens to participate in public life. Ongoing struggles between the federal government and the states over the appropriate division of political power enhance these social capital benefits of federalism. Accordingly, this Article challenges the view that the benefits of federalism are merely the benefits of decentralized government, and also challenges modern skepticism about the continued relevance of the states. This Article calls for further empirical research on the relationships between federalism and social capital in order to inform debates about the continued usefulness of a federalist system of government.

federalism, social capital, constitutional design, federalist system, government structure

Abstract:
Can individuals give up constitutional rights in exchange for a governmental benefit? The question reveals a paradox in constitutional law. While criminal rights are easily and routinely waived through plea bargaining, the unconstitutional conditions doctrine prohibits the government from making deals with First Amendment and other non-criminal rights. This is true even though the unconstitutional conditions cases involve exactly the same arrangement as plea agreements: the government offers a benefit or relief from a penalty in exchange for foregoing a constitutional protection. In overlooking this sameness, courts have developed two independent and vastly different approaches to waiving constitutional rights. Academic commentary reflects a comparable trend; in dealing exclusively with criminal rights or with non-criminal rights, commentators have also failed to provide an integrated account of waiver.

This Article examines the waiver paradox in greater detail, explores its implications for constitutional law, and considers some possible resolutions. The Article begins by tracing the emergence and contours of the unconstitutional conditions doctrine and the doctrine of criminal waiver. It then examines the nature and consequences of the waiver paradox, highlighting the differences between the two doctrinal approaches, the consequences of applying just one doctrine across the board to resolve all issues of waiving rights, and the uncertainty of both doctrines that results from the failure to develop an integrated approach to waiver.

After demonstrating that the waiver paradox cannot be resolved by understanding criminal rights as individual rights subject to bargaining but non-criminal rights as public rights properly protected from waiver, the Article presents and assesses three possible resolutions to the waiver paradox. The first, a conservative resolution, relaxes to some extent the unconstitutional conditions doctrine and places greater restraints on waiving criminal rights. The conservative resolution therefore brings the doctrines of unconstitutional conditions and of criminal waiver closer together, but it does not aim for complete consistency between the two. A second resolution, more radical, applies a single standard to all questions of waiving constitutional rights, eliminating current differences between the unconstitutional conditions doctrine and the criminal waiver doctrine.

The third, and best, resolution entails a new, value-oriented approach to all questions of waiver. Under this resolution, if waiver of a constitutional right would undermine a compelling public value protected by the Constitution, then individuals should not be able to waive the right. In making that determination, attention should be given to the procedures followed when rights are waived.

For instance, one way to protect the public values underlying criminal constitutional protections would be for juries rather than judges to assess the validity of guilty pleas and plea agreements. The Article therefore proposes the use of plea panels, panels of citizens akin to grand juries, to oversee guilty pleas.

The Article concludes by observing that although courts and commentators have developed special doctrines for waiving rights, waiver is a form of the more general issue of governmental burdens on constitutional

constitutional rights, waiver, juries, criminal rights, guilty pleas, waiving rights, unconstitutional conditions