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Abstract:
Two of the most talked-about crimes of the year, the ILoveYou computer worm and the denial of service attacks on Yahoo, eBay, and ETrade, suggest that a new form of crime is emerging: cybercrime. Thousands of these crimes occur each year, and the results are often catastrophic; in terms of economic damage, the ILoveYou worm may have been the most devastating crime in history, causing more than $11 billion in losses.

This paper asks how cybercrime is best deterred. It identifies five constraints on crime - legal sanctions, monetary perpetration cost, social norms, architecture, and physical risks - and explains how each of these constraints may be reduced by committing crime in cyberspace. The ease of cybercrime risks negative substitution effects, as offenders move away from realspace and look towards the Net. Because cybercrime requires fewer resources and less investment to cause a given level of harm, the law might want to use approaches that differ somewhat from those in realspace. In part, this is so because computers provide a cheaper means to perpetrate crime. Criminal law must be concerned not only with punishing crime ex post, but with creating ex ante barriers to inexpensive ways of carrying out criminal activity. For example, if computers serve as substitutes for conspirators, then law might develop doctrines that treat computers as quasi-conspirators and establish inchoate liability.

Some government barriers, however, will create dead-weight losses. For example, encryption has the potential to further massive terrorism (which leads many in the law enforcement community to advocate its criminalization) but also the potential to facilitate greater security in communication and encourage freedom (which leads many others to push for unfettered access to the technology). To help solve such problems, the paper advocates the use of sentencing enhancements as tools that surgically target bad acts. Sentencing enhancements have received relatively little attention in the academic literature; this Article attempts to fill that gap.

Cyberspace also adds additional parties to the traditional perpetrator-victim scenario of crime. In particular, much cybercrime is carried out through the use of Internet Service Providers. Law should impose modest responsibilities on third parties because doing so promotes cost deterrence and capitalizes on what Reinier Kraakman has called gatekeeper liability. Third parties can develop ways to make crime more expensive, and may be able to do so in ways that the government cannot always directly accomplish, such as cost effective regulation of the architecture of the Net. The same logic sometimes applies to victims of cybercrime; law can develop mechanisms to encourage optimal victim behavior as well. Burden-shifting must not, however, sacrifice the value of interconnectivity and network effects.

Abstract:
Building on work in architectural theory, this Article demonstrates how additional attention to cities, neighborhoods, and individual buildings can reduce criminal activity. The field of cyberlaw has been transformed by the insight that architecture can regulate behavior in cyberspace; this insight will now be applied to the regulation of behavior in real space. The instinct of many lawyers, however, is to focus on legal rules, without thinking about the constraint of physical space. Ironically, even an architectural problem in crime control - "broken windows" - has prompted legal, not architectural solutions. Four architectural concepts are considered: increasing an area's natural surveillance (its visibility and susceptibility to monitoring by private citizens); introducing territoriality (by demarcating private and semiprivate spaces); reducing social isolation; and protecting potential targets. Some of these mechanisms are subtle, often times invisible, methods that prevent criminal activity.

The Article then illustrates specific legal mechanisms that harness the power of architecture to prevent crime. Distinguishing between situations where the government acts as a builder, civil regulator, and criminal enforcer, solutions are suggested in a variety of legal fields, drawing on property, torts, taxation, contracts, and criminal law. Procurement and taxation strategies can promote effective public architecture; crime impact statements, zoning, tort suits, and contractual regulation may engender private architectural solutions as well. Criminal law, particularly through forfeiture, may also play a role. Several problems with architectural regulation are considered, such as the extension of social control and potential losses in privacy. Nevertheless, the Article concludes by suggesting that local jurisdictions should emphasize architecture more, and standard law-enforcement methods less.

Abstract:
In this paper, we argue that President Bush's recent Military Order, which directs his Defense Department to detain any of an ill-defined class of individuals, potentially indefinitely, and to try them in military tribunals, jeopardizes the separation of powers today and charts a dangerous course for the future. Our Constitution's structure mandates that fundamental choices, in times of peace as well as war, are to be made not by one person or one branch, but by the three branches of government working together. Approval by Congress is a necessary, but by no means sufficient, precondition before the tribunals can be entertained as constitutional. We also explain why the present circumstances differ decisively from those at issue in the Supreme Court's body of decisions regarding military tribunals during the Civil War and World War II. We further explain why the specter of civilian habeas review will necessitate legislative involvement, and detail the significant equal protection problem with the Military Order.

Abstract:
Over one-quarter of all federal criminal prosecutions and a large number of state cases involve prosecutions for conspiracy. Yet, the major scholarly articles and the bulk of prominent jurists have roundly condemned the doctrine. This Article offers a functional justification for the legal prohibition against conspiracy, centering on psychological and economic accounts. Advances in psychology over the past thirty years have demonstrated that groups cultivate a special social identity. This identity often encourages risky behavior, leads individuals to behave against their self-interest, solidifies loyalty, and facilitates harm against non-members. So, too, economists have developed sophisticated explanations for why firms promote efficiency, leading to new theories in corporate law. These insights can be "reverse-engineered" to make conspiracies operate less efficiently. In reverse-engineering corporate-law principles and introducing lessons from psychology, a rich account of how government should approach conspiracy begins to unfold.

In particular, law enforcement strives to prevent conspiracies from forming by imposing high up-front penalties for joiners but uses mechanisms to harvest information from those who have joined and decide to cooperate with the government. Traditional conspiracy doctrines such as Pinkerton liability and the exclusion from merger not only further cooperation agreements, they also make conspiracies more difficult to create and maintain by forcing them to adopt bundles of inefficient practices. The possibility of defection forces the syndicate to use expensive monitoring of its employees for evidence of possible collusion with the government. Mechanisms for defection also break down trust within the group and prime members to think that others are acting out of self-interest. The Article concludes by offering a variety of refinements to conspiracy law that will help destabilize trust within the conspiracy, cue the defection of conspirators, and permit law enforcement to extract more information from them.

Abstract:
The standard conception of separation of powers presumes three branches with equivalent ambitions of maximizing their powers. Today, however, legislative abdication is the reigning modus operandi. Instead of bemoaning this state of affairs, this piece asks how separation of powers can be reflected within the Executive Branch when that branch, not the legislature, is making much law today. The first-best concept of legislature v. executive checks-and-balances has to be updated to contemplate second-best executive v. executive divisions.

A critical mechanism to promote internal separation of powers is bureaucracy. Much maligned by both the political left and right, bureaucracy serves crucial functions: it creates a civil service not beholden to any particular Administration and a cadre of experts with a long-term institutional worldview. Executives and academics routinely malign bureaucracy as inefficient, but the inefficiency presumed in the Founders' design of three overlapping branches needs some internal replication given the seismic shift in power to the Executive Branch. This Article therefore proposes a set of mechanisms that can create checks and balances within the Executive Branch. The apparatus of these restraints is familiar - separate and overlapping cabinet offices, mandatory review of government action by different agencies, civil-service protections for their workers, reporting requirements to Congress, and an impartial decisionmaker to resolve inter-agency conflicts. The idea is to create a more textured conception of the Presidency than either the unitary executivists or their critics espouse.

separation of powers, constitutional law

Abstract:
What deference is due the executive in foreign relations? Given the considerable constitutional authority and institutional virtues of the executive in this realm, some judicial deference is almost certainly appropriate. Indeed, courts currently defer to the executive in a large number of cases. Professors Eric Posner and Cass Sunstein nevertheless call for a dramatic expansion in the deference courts accord executive interpretations of law in the foreign-affairs context. They maintain that courts should presumptively give Chevron-syle deference to executive interpretations of foreign relations law - even if the executive interpretation is articulated only as a litigation position and even if it violates international law. In our view, substantial deference to the executive is singularly inappropriate in a large swath of cases eligible for Chevron deference in their proposal - namely, foreign relations law that operates in what we call the executive constraining zone. Courts have scrutinized, and should continue to scrutinize, executive interpretation of international law that has the status of supreme federal law, is made at least in part outside the executive, and conditions the exercise of executive power. Failure to do so would undermine the rule of law in the foreign relations context. It would also dramatically increase the power of the president in ways that would: subvert the nation's interests, discourage the executive from developing important internal checks on presidential power, and lead to less congressional regulation of the executive. In short, we maintain that deference at some point invites disregard; and law-interpreting authority at some point effectively constitutes law-breaking authority.

Abstract:
Today, much public attention and litigation in the wake of the government's response to the September 11, 2001 attacks centers on one or another claims about the government's substantive illegality (such as claims based on the Due Process Clause). This is a mistake. Instead of focusing on the ultimate individual liberty questions, challenges should first focus on equality.

Since the terrorist attacks, the government has repeatedly singled out aliens for special disfavor. For example, the Military Commissions Act blatantly discriminates against aliens - shunting the 20 million green-card holders and 5 billion people across the planet into a different, and far inferior, trial procedure than what American citizens face. Since at least the ratification of the Fourteenth Amendment's equality guarantee, such legislation has never been placed in the United States Code.

The equality challenges are the next big thing in the war on terror. While discrimination by the federal government against aliens might be justified when it is handing out government benefits, it is not appropriate when deciding whether someone can be put before a tribunal with the power to dispense the most awesome powers of government, such as life imprisonment and the death penalty. When legislation singles out only powerless aliens, moreover, the standard checks on government abuse, such as political accountability, fail to operate. The result is not only that the legislation runs afoul of the Constitution's guarantee of equal protection, it also eliminates the legislation from the zone of deference traditionally due to the political branches.

equality, aliens

Abstract:
This Article explains why the legal case for the recently disclosed National Security Agency surveillance program turns out to be stronger than what the Administration has advanced. In defending its action, the Administration overlooked the details surrounding one of the most important periods of presidentially imposed surveillance in wartime - President Franklin Delano Roosevelt's wiretapping and his secret end-run around both the wiretapping prohibition enacted by Congress and decisions of the United States Supreme Court. As explored through primary source material, President Roosevelt acted against the interpretations of, among others, his Attorney General and the Supreme Court regarding a law passed by Congress, deciding, in secret, that wiretapping was essentially his prerogative. That Attorney General, Robert Jackson, later remarked that it was "[t]he only case that I recall in which [FDR] declined to abide by a decision of the Supreme Court."

The FDR precedent provides some justification for what is known about President Bush's wiretapping program - more, it would seem, than what has been put forward by the Administration itself. By outlining some of the general conditions under which Executive Branch precedent may justify contemporary national security decisions, we develop a framework for Executive Branch stare decisis and ultimately conclude that the FDR precedent should not be followed today. We recognize, however, that our conclusion is debatable, and believe that the FDR precedent deserves widespread debate, instead of the inattention it has received thus far. We further explain why the past history and present experience with wiretapping reveals the relative frailty of both courts and Congress in national security disputes, and highlights the need to lace the concept of separation of powers into the Executive Branch.

separation of powers, constitutional law, national security/terrorism, criminal law

Abstract:
This paper uses the impeachment of President Clinton to explain how one can adhere to originalism in the context of judicial interpretation and, nevertheless, believe in a broader style of interpretation for the legislature. Originalism, as practiced in this way, is a doctrine that constrains unelected judges from an unduly free interpretive approach, but it does not preclude Congress from making constitutional judgments that are more flexible and nuanced.

At stake in this project is something larger than the debate over originalism. Constitutionalists have assumed, too quickly in my view, that symmetry should exist between the interpretive styles of the courts and Congress. This assumption slights the many reasons why an interpretive method may work well in one area and not work as well in another. Instead of mapping out all these possible divergences, the paper illustrates the point with three examples: the roles of history, precedent, and moral philosophy. It shows how, in each instance, arguments can be made to suggest that divergent institutional roles should be taken into account in formulating a comprehensive interpretive philosophy about the Constitution.

This essay largely concentrates on the first example, the role of history. It contrasts two prevailing theories of constitutional law, legal process and minority protection, and argues that implicit in each theory is an account of why the role of history might differ depending on whether the decision-maker is the judiciary or Congress. It is well established at this point that the ultimate purposes of the Constitution will influence what style of interpretation is appropriate. What this essay seeks to show is that those purposes counsel different interpretive theories for different constitutional actors.

Abstract:
This essay, for the annual Supreme Court issue of the Harvard Law Review, uses Hamdan to illustrate why the disparagement of theory in law schools is partially wrong. By examining a few of the litigation choices made in the case, it demonstrates some of the benefits of theory to practice. At least three different theoretical tools were involved in Hamdan: (1) cognitive psychological research on framing effects and bias toward compromise; (2) theoretical inquiry into the timing of Supreme Court litigation and the passive virtues; and (3) economic analysis of penalty default rules and political science research on the veto. The study of such tools in law schools is widely - and incorrectly - believed irrelevant to practice.

At the same time, it is easy to overstate the case for theory, as contemporary legal scholars frequently do. The truth is that very few top law schools today prepare all of their students to be lawyers. Some lessons along this dimension from the Hamdan case are explored as well, including the teaching of lawyering skills.

The essay also analyzes the implications of the Hamdan decision, concentrating on two central holdings: (a) the President cannot set aside or creatively interpret laws of Congress under claims of inherent authority, and (b) treaties ratified by the Senate constrain the exercise of executive power, and the President does not have unfettered ability to interpret such treaties as he chooses.

As to (A), the most important doctrinal lesson of Hamdan is its repudiation of the claim that the President is entitled to act alone. Indeed, Hamdan stands as a defining moment in constitutional law because it integrates the modern communication and transportation revolution into constitutional analysis.

As to (B), the Court's decision might best be explained on the ground that the President lacked support not only from Congress, but also from the executive branch's own experts. Hamdan second-guessed the President's interpretations on this view because those interpretations had not earned the approval of the bureaucracy, including the Judge Advocates General and the State Department. Through bypassing the interagency process, and squelching expertise under the aegis of political accountability, the Administration weakened the rationale for deference all on its own.

theory, litigation, pratice

Abstract:
The standard conception of separation of powers presumes three branches with equivalent ambitions of maximizing their powers. Today, however, legislative abdication is the reigning modus operandi. Instead of bemoaning this state of affairs, this piece asks how "separation of powers" can be reflected within the Executive Branch when that branch, not the legislature, is making much law today. The first-best concept of legislature v. executive checks-and-balances has to be updated to contemplate second-best executive v. executive divisions.

A critical mechanism to promote internal separation of powers is bureaucracy. Much maligned by both the political left and right, bureaucracy serves crucial functions: it creates a civil service not beholden to any particular Administration and a cadre of experts with a long-term institutional worldview. Executives and academics routinely malign bureaucracy as inefficient, but the inefficiency presumed in the Founders' design of three overlapping branches needs some internal replication given the seismic shift in power to the Executive Branch. This Article therefore proposes a set of mechanisms that can create checks and balances within the Executive Branch. The apparatus of these restraints is familiar - separate and overlapping cabinet offices, mandatory review of government action by different agencies, civil-service protections for their workers, reporting requirements to Congress, and an impartial decisionmaker to resolve inter-agency conflicts. The idea is to create a more textured conception of the Presidency than either the unitary executivists or their critics espouse.

Abstract:
This paper explains how theories of realspace architecture inform the prevention of computer crime. Despite the prevalence of the metaphor, architects in realspace and cyberspace have
not talked to one another. There is a dearth of literature about digital architecture and crime altogether, and the realspace architectural literature on crime prevention is often far too soft for many software engineers. This paper will suggest the broad brushstrokes of potential design solutions to cybercrime, and in the course of so doing, will pose severe criticisms of the White House's recent proposals on cybersecurity.

The paper begins by introducing four concepts of realspace crime prevention through architecture. Design should: (1) create opportunities for natural surveillance, meaning its visibility and susceptibility to monitoring by residents, neighbors, and bystanders; (2) instill a sense of territoriality so that residents develop proprietary attitudes and outsiders feel deterred from entering a private space; (3) build communities and avoid social isolation; and (4) protect targets of crime. There are digital analogues to each goal. Natural-surveillance principles suggest new virtues of open-source platforms, such as Linux, and territoriality outlines a strong case for moving away from digital anonymity towards psuedonymity. The goal of building communities will similarly expose some new advantages for the original, and now eroding, end-to-end design of the Internet. An understanding of architecture and target prevention will illuminate why firewalls at end points will more effectively guarantee security than will attempts to bundle security into the architecture of the Net. And, in total, these architectural lessons will help us chart an alternative course to the federal government's tepid approach to computer crime. By leaving the bulk of crime prevention to market forces, the government will encourage private barricades to develop - the equivalent of digital gated communities - with terrible consequences for the Net in general and interconnectivity in particular.

Abstract:
Since Bickel, the Court has been understood as having a threefold power: striking down acts for unconstitutionality, legitimating them, or employing the passive virtues. This Article contends that there is a fourth power for courts, called advicegiving. Advicegiving occurs when judges recommend, but do not mandate, a particular course of action based on a concern for rule or principle. Courts have been giving advice, unconsciously at times, consciously at others, and this Article reveals some of these instances and seeks to provide a normative justification for the practice. The Article breaks down advicegiving into several categories, and explains how advice, when given to the political branches, can engender a colloquy that maximizes respect for coordinate branches, while also serving goals of federalism, enhancing political accountability, and encouraging judicial honesty.

The Article begins with a historical discussion of advicegiving, centering largely on the Founding. It then goes through four main examples from the 1996 Supreme Court Term, and contrasts those cases with several others. In each of the four cases, I criticize the majority for ignoring the model, and use the case to show how advicegiving could have enhanced structural fidelity and governmental functioning. In Clinton v. Jones, I argue that the Court should have asked Congress for a clear statement about the meaning of the relevant statutes. In the right-to-die case Quill v. Vacco, I argue that before stepping into the controversy on its own, the Court should have asked the New York state courts to resolve the thorny questions about the meaning and reach of the state statute. By seeking a state court determination, the Court could have planted the seeds of a productive federal-state conversation about the state statute. In the death penalty case Gray v. Netherland, I show how federal courts can single out particularly egregious death penalty cases and call on governors to review them for commutation. This strategy is particularly appropriate when procedural bars are lurking in the case; a court opinion can explain those procedural bars, thus preventing state officials from hiding behind the imprimatur of a court's decision not to interfere with an execution. In the last case, United States v. Printz, I explain why courts that strike down legislation should provide blueprints of constitutional methods to achieve the same policy goals. Each of these cases illustrates a separate type of advicegiving, and reveals some of the virtues of the model. The Article concludes by considering some of the objections to advicegiving, and explains why advicegiving is a viable alternative to the Court's other powers in appropriate cases.

Abstract:
A standard assumption of criminal punishment is that it will create deterrence. This Article superimposes a few complications on this premise through the vehicle of substitution. Beginning with law and economic approaches to criminal law, it contends that the notion of marginal deterrence should be extended to cover other instances of substitution. For example, substitution might suggest that harsh penalties on crack cocaine might have increased consumption of heroin (heroin is punished with a sentence that is 20 to 400 times lower than a comparable crack sentence). Considerations about optimal penalties, therefore, cannot revolve solely around the harm of the activity being punished, as they must examine the futility of likely substitutes, and discount the benefits accordingly. To minimize harmful substitution effects, overarching approaches to criminal sentencing (such as the Sentencing Guidelines) might take substitution effects into account in formulating penalties. Several other complications the paper develops takes up questions about income effects, and how strategies based on such effects can maximize deterrence.The paper then relaxes the assumption of fixed preferences, and suggests that criminalization may shape tastes in several ways. Building on work in sociology, it contends that a spectacle of punishment and other lore-creating mechanisms of criminal law may be designed not to price conduct, but to change people's attitudes towards crime. Yet there is potential complementarity from criminal sentences because they may produce stigma and mark offenders. The stigmatization of various subgroups may lead to internal norms about crime that may further marginalize its members, thus producing more crime. In addition, the paper suggests that recent work in cognitive psychology undermines the notion of rational-choice between alternatives, and that decision making between criminal options might be influenced by technically irrelevant alternatives (via extremeness aversion and compromise effects). As a result of these substitution effects and cognitive biases, it might be worthwhile for criminal law to create "less bad" alternatives so that substitution can be used to detract lawbreakers away from serious crimes, and channel their criminal activity into less harmful areas.