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Abstract: This essay is intended to make the task of reading the United States Constitution a little more enjoyable. It presents twenty-one constitutional curiosities, all of which can be answered by reference to the text of the Constitution.
Constitution, constitutional law, interpretation, textualism
Abstract: Tales of northern exploitation of biological wealth and ethnobiological knowledge from the global south have become so frequent, so familiar, and so uniform that allegations of biopiracy now follow a predictable script. I come not to praise the biopiracy narrative, but to bury it. Most allegations of biopiracy are so thoroughly riddled with inconsistencies and outright lies that the entire genre, pending further clarification, must be consigned to the realm of rural legend. Despite its implausibility, however, accusations of biopiracy set the rhetorical baseline in many debates within the international law of environmental protection and intellectual property. The time has come to dismantle the myth of biopiracy root and branch. This article assesses claims of biopiracy according to the layered model of information platforms. Every information platform consists of three distinct layers - physical, logical, and content - and biological information is no exception. The conventional biological distinction between phenotypes and genotypes separates the physical from the logical layer of information in individual biological specimens and in species at large. Ethnobiological knowledge is best characterized as the inventive transformation of genetic information into commercially valuable applications. An appropriately utilitarian view of property and its relationship to each layer of biological information dissolves any allegation of biopiracy. Moreover, this article considers what the proponents of the biopiracy narrative have been seeking and how the global community might give the global south what it needs (if not necessarily what it wants). Although the overarching goal of compensating traditional communities for their contribution to the global storehouse of biological knowledge remains out of reach for the moment, more modest - and in many ways more beneficial - intermediate objectives are quite feasible. Simple reforms of existing patent law can prevent outsiders from securing intellectual property in knowledge already developed by traditional communities. In addition, countries rich and poor should develop a framework for regulating the practice of bioprospecting and encourage the professionalization of parataxonomy.
biopiracy, bioprospecting, intellectual property, patents, trade secrets, information platforms, layered model, physical layer, logical layer, content layer, prior art, parataxonomy
Abstract: Wickard v. Filburn, 317 U.S. 111 (1942), represented a pivotal moment in the Supreme Court's effort to determine the scope of Congress's power "[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Together with NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937), and United States v. Darby, 312 U.S. 100 (1941), Filburn is widely thought to have marked a turning point in commerce clause jurisprudence. Under Chief Justice William Rehnquist, the Supreme Court severely undermined what had been regarded as the post-New Deal consensus on the scope of Congress's commerce power. This reconsideration of commerce clause doctrine warrants careful reexamination of Wickard v. Filburn. This article tells the story of Wickard v. Filburn. After providing a brief survey of American agriculture and its regulation between the World Wars, this article describes the specific controversy over Roscoe Filburn's 1941 wheat crop. In its own time, Wickard v. Filburn represented merely one component of the New Deal Court's commerce clause jurisprudence. Greater turmoil over the commerce clause at the turn of the twenty-first century has breathed new life into Filburn. This article therefore examines not only what Filburn meant at the time of its decision, but also what it represents in our time.
Filburn, Wickard, agriculture, New Deal, Great Depression, Agricultural Adjustment Act, USDA, AAA, commerce clause, interstate commerce, aggregation, wheat, price support, supply control, family farms
Abstract: Biodiversity and biotechnology, according to received wisdom, can scarcely coexist. The global south is home to most of earth's threatened and endangered species, while the global north holds the capital and technology needed to develop this natural wealth. The south argues that intellectual property laws enable pharmaceutical companies and seed breeders in the industrialized north to commit biopiracy. Advocates for less developed countries urge legal parity for each side's source of value, either through a reduction in the protection accorded conventional forms of intellectual property or through formal recognition of traditional knowledge. By contrast, the United States has characterized the Convention on Biological Diversity as a threat to the global life sciences industry in general and to American life sciences companies in particular. Both sides magnify the significance of the dispute, having reached an apparent consensus that commercial exploitation of genetic resources holds the key to biodiversity conservation. I contest these conventional views of the relationship between biodiversity and biotechnology. Both sides of the debate have overstated the significance of bioprospecting. Commercial development aids biodiversity primarily by overcoming perverse economic incentives to consume scarce natural resources that may turn out to have greater value from a global, long-term perspective. It is erroneous to frame the issue as whether intellectual property in the abstract can coexist with the international legal framework for preserving biodiversity. I expose this fallacy through the application of three conceptual filters: genotypes versus phenotypes, genes versus memes, and pharmaceutical versus agricultural applications of biotechnology. To be sure, the notion of intellectual property is elastic enough to embrace all of the intangible assets at stake, including raw genetic resources, advanced agricultural and pharmaceutical research, and the ethnobiological knowledge that often transforms a locally useful organism into a globally valued application of biotechnology. It will not do, however, merely to acknowledge that intellectual property can be reshaped to embrace ethnobiological know-how and other forms of traditional knowledge. Whether traditional knowledge should be treated as an independent form of intellectual property presents an altogether distinct question. Ethnobiological knowledge should not be given proprietary status. As a general rule, intellectual property should be recognized only when it would spur innovation. With respect to biological knowledge already diffused within a traditional community, intellectual property confers no additional incentive to invent or discover. These ideas therefore belong in the global public domain.
biodiversity, biotechnology, biopiracy, bioprospecting, intellectual property, patents, trade secrets, traditional knowledge, ethnobiological knowledge, genetic resources, Convention on Biological Diversity, Trade-Related Aspects of Intellectual Property Rights, genes, memes, public domain
Abstract: Among the many cultural shibboleths that distinguish conservatives from their fellow Americans, a certain disdain for the Spanish language looms large. George W. Bush, perhaps the most capable speaker of Spanish ever to serve as President, has publicly opposed the rendering of the national anthem in any language besides English, but most of all in Spanish. Scarcely a generation ago, however, the United States government actively promoted the translation of iconic texts into Spanish. For instance, the Constitutional Bicentennial Commission published a Spanish version of the Constitution. Given the sharp increase in the United States' Spanish-speaking population, this country might someday embrace the notion, pioneered by the United Nations and later embraced by the European Union, that a political system's fundamental law can be expressed in more languages than one. The possibility of placing the English and Spanish versions of the Constitution on equal footing cannot be dismissed out of hand, especially in a polity whose highest court has exhibited increasing willingness to consult foreign sources of constitutional wisdom. Out of a patriotic desire to serve our fellow Americans, I offer the United States government's official Spanish translation of the Constitution, annotated with an eye toward interpretive ambiguity, linguistic curiosity, and cross-cultural bemusement.
Constitution, Spanish, English, linguistics, translation, language, interpretation, constitutional law
Abstract: Telecommunications regulation should be viewed as an attempt to solve the problem of financing large-scale public infrastructure over a sufficiently long period of time to pose significant and perhaps prohibitive amounts of risk. Investors are reluctant to commit capital to infrastructure if they cannot be assured of a reasonable return on their investment. Pricing rules in telecommunications are designed to protect incentives to invest in high-cost networks. Pricing disputes in the American telecommunications industry have raised serious questions over the extent to which public rules are governed by the United States Constitution's promise that private property shall not be taken for public use, without just compensation. These disputes are especially intense when they involve the price at which incumbent network owners must sell unbundled network elements to competitors seeking interconnection. This paper argues that attempts to enforce a pricing rule based on a utility's historic record of prudent investment lacks any plausible basis in American constitutional law. The misguided attempt to seek a constitutional solution to the problem of network pricing arises from a fundamental misunderstanding of the so-called regulatory compact. Rather, the problem of network pricing in highly complex and technologically volatile infrastructural industries such as telecommunications and electricity demands sophisticated legal tools such as price-level regulation, transitional pricing rules such as avoided-cost pricing and the long-run incremental cost rule for pricing unbundled access to incumbent networks, reverse auctions to fulfill universal service obligations, and tailored stranded cost recovery provisions. Reliance on a metaphorical regulatory compact has inflicted serious harm to the law of regulated industries. Accordingly, this obsolete metaphor should be discarded.
Telecommunications, regulated industries, ratemaking, regulatory takings, regulatory compact, ECPR, TELRIC, public utilities, infrastructure, asset-specificity, Smyth, Hope Natural Gas, Verizon, Sidak, Spulber, Yoo
Abstract: Legal scholars have already begun examining impact factors among law reviews as a measure of influence among these journals and the schools that publish them. John Doyle has compiled citation statistics for a wide range of English-language law journals, including total citations in law journals, total citations in judicial opinions, and journal impact factors. Ronen Perry has developed a measure of law school prestige based on the Doyle database. Bibliometrics is rapidly emerging as a preferred alternative to more subjective assessments of academic prestige and influence. Law should not be immune from this trend. This paper evaluates the underlying mathematics of impact factors among law journals. Law journal impact factors follow the sort of stretched exponential distribution that characterizes many right-skewed distributions found in the natural and social sciences. Indeed, a simple exponential distribution - that is, a stretched exponential distribution with an exponent of 1 - generates a strikingly accurate, even beautiful, histogram of impact factors among law reviews. Mindful of physicist Hermann Weyl's admonition that any necessary choice between truth and beauty should favor beauty, I freely admit to sacrificing some marginal improvement in the descriptive accuracy of my model in order to develop the elegant mathematics of the simple exponential distribution. Further elaboration of this model of law review impact factors as an exponential distribution yields the Gini coefficient of a stylized legal literature in which each journal's influence is expressed by its impact factor. The remarkable result of this inequality computation is that the Gini coefficient of the legal literature modeled according to a simple exponential distribution is exactly 1/2, an outcome that is determined analytically rather than empirically. I conclude that modeling law review impact factors according to an exponential distribution gives rise to a powerful mathematical tool for assessing influence among law journals and law schools.
impact factor, bibliometrics, rankings, Garfield, Doyle, Perry, Gini coefficient, Lorenz area, power law, stretched exponential, Bradford's law, Zipf's law, U.S. News, exponential distribution, empirical analysis, calculus
Abstract: Among drivers of evolution, two forces tower above all others. One of them is food. The other is sex. The seed is both. Information embedded in seed is amenable to various forms of proprietary protection. In the abstract, the Plant Variety Protection Act (PVPA) provides an attractive alternative to utility patents on plants and to the protection of hybrid crops as trade secrets. In practice, the PVPA has failed to become the preeminent form of intellectual property in plants. This article explores some of the reasons for this apparent statutory shortcoming. First, this article outlines the case for a substantive canon of statutory interpretation derived from the Constitution's requirement that federal intellectual property laws advance the Progress of Science and useful Arts. Second, this article applies this canon to the PVPA. In particular, it addresses the PVPA's controversial crop and research exemptions. Third, this article discusses the statutory requirement that applicants for plant variety protection deposit reproductive material in a public repository. Fourth, this article assesses the practice of seed-wrap licensing as a contractual response to reproductive breeding, brown-bag sales, and other activities putatively conducted under the PVPA's crop and research exemptions. This article concludes by defending its constitutionally informed approach to interpreting the PVPA, which appears to be a rare instance in the annals of contemporary intellectual property law in which proprietary protection is not excessive, but rather insufficiently robust.
plants, intellectual property, statutory interpretation, PVPA, Plant Variety Protection Act, patent, trade secret, UPOV, research exemption, reverse engineering, hybrid crops, GURTs
Abstract: These con law haiku Tell law with style and rhythm. Download and enjoy.
Constitutional law, Supreme Court, poetry, haiku, Constitution
Abstract: Like most other Indo-European languages, English does not distinguish between the inclusive and exclusive uses of the first person plural. By contrast, languages as diverse as Tok Pisin, Samoan, Taiwanese, and Cherokee take care to distinguish between first person plural pronouns that include the listener and those that exclude the listener. This linguistic difference sheds light on the use of we throughout the foundational documents and the authoritative interpretations of the American constitutional tradition.
linguistics, constitutional law, Constitution, Declaration of Independence, Supreme Court, pronouns
Abstract: This article tells the story of Wickard v. Filburn, 317 U.S. 111 (1942). After providing a survey of American agriculture and its regulation between the World Wars, this article describes the constitutional landmark that began as a controversy over Roscoe Filburn's 1941 wheat crop. Wickard v. Filburn represents a pivotal moment in the Supreme Court's effort to define Congress's power [t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes. Greater turmoil over commerce clause jurisprudence has breathed new life into Wickard v. Filburn.
Filburn, Wickard, agriculture, farming, farms, New Deal, Great Depression, Agricultural Adjustment Act, USDA, AAA, commerce clause, interstate commerce, aggregation, wheat, price support, supply control, family farms, constitutional law, Constitution
Abstract: The Telecommunications Act of 1996 promised to promote competition and reduce regulation, secure lower prices and higher quality services . . . and encourage the rapid deployment of new telecommunications technologies. One decade later, the Act has drawn sharp criticism for having prompted a wave of mergers among incumbent carriers without having generated a corresponding increase in consumer welfare. For instance, the very sort of merger that was once considered unthinkable - a reunification of AT&T with two former Bell operating companies - is on the verge of completion. The legal fate of these mergers is at once a historical mirror and a harbinger of American telecommunications law beyond the first decade under the 1996 Act. Mergers such as the unions of SBC and AT&T, Verizon and MCI, and Sprint and Nextel have not encountered significant legal obstacles. Since the Bell breakup, no significant telecommunications merger has failed to receive regulatory approval in the United States. The 1996 Act and its implementation have signaled that federal authorities will remain content to extract concessions in exchange for their approval of even the largest mergers within the telecommunications industry. A decade after comprehensive legislative reform of telecommunications, all segments of the industry are highly concentrated. Miniature versions of the old Bell system have emerged on each coast. The cable industry is only slightly less concentrated, and nothing stands between further consolidation and integration in that industry except provisions of the 1996 Act that had been designed to protect competition within media rather than telecommunications markets. If Voice over Internet Protocol (VOIP) overcomes every other form of terrestrial telecommunications technology, control of telecommunications will be divided between providers of broadband Internet access and wireless network operators. Firms that are most facile in integrating wireless and wireline services, for residential and business customers alike, will dominate the industry. This article reviews the mergers that have reshaped the telecommunications industry since the Bell breakup decree and in particular since the passage of the 1996 Act. It analyzes the legal framework that has developed in response to the 1996 Act and its implementation. Much of the FCC's merger policy has grown out of its response to horizontal mergers involving incumbent telecommunications carriers. The Telecommunications Act's cable provisions and certain legal tools independent of the 1996 legislative reform have facilitated an alternative approach to merger policy. That alternative path has assumed ever greater importance as the Internet and access to it via cable-based platforms have achieved greater prominence within the market for telecommunications services. This article also explores why the Act has accelerated rather than retarded the trend toward consolidation and concentration in telecommunications. Having devoted most of its energy toward legal issues whose technological and economic roots lay deep in the Bell breakup decree, the Act failed altogether to deal with the Internet. This oversight was merely one of several profoundly mistaken technological assumptions underlying the Telecommunications Act. It also contemplates explores possible avenues for reform that remain open under the 1996 Act should the federal government ever conclude that the anticompetitive potential of telecommunications mergers outweighs their salutary effects.
telecommunications, mergers, FCC, Telecommunications Act, Bell operating company, cable industry, Clayton Act, actual potential competition, benchmarking, 251, 271, 652
Abstract: All deliberate speed, the remedial formula adopted in Brown v. Board of Education, 349 U.S. 294 (1955), has a singularly interesting literary lineage. Contrary to Justices Holmes and Frankfurter's assumption, all deliberate speed is not a phrase from the traditional language of the English Chancery, but rather a variant on a line from an 1893 poem by Francis Thompson, The Hound of Heaven. How Thompson's line, "Deliberate speed, majestic instancy," came to dominate one of the defining moments in American constitutional law represents a unique instance of not law-in-literature or law-as-literature, but literature-as-law. By turning our analysis away from the romanticized origins of all deliberate speed in a Chancery practice that never existed and toward the real poetry of Francis Thompson, we may glimpse how all deliberate speed and the Brown litigation achieved a measure of poetic justice. Brown II's instruction that public school districts dismantle desegregation with all deliberate speed gave Brown I's vision of equal justice under law enough time and enough legitimacy to enter the hearts and minds of the American people in a way unlikely ever to be undone.
Brown v. Board of Education, Brown II, all deliberate speed, Oliver Wendell Holmes, Felix Frankfurter, Francis Thompson, The Hound of Heaven, law and literature
Abstract: In Regulating Infrastructure: Monopoly, Contracts, and Discretion (2003), Jose Gomez-Ibanez synthesizes the economics of the firm with the law of regulated industries. Professor Gomez-Ibanez aregues that legal regimes designed to promote the provision of infrastructure should systematically move away from the regulation of entry, exit, prices, and terms of service and move instead toward contractual arrangements that bind providers of infrastructure to their customers or with governments. This theoretically attractive thesis falls tantalizingly short of setting a workable regulatory agenda. Far from being a regulatory panacea, government-based contracting arguably represents the least attractive means of transforming the provision of infrastructure from a publicly regulated affair into a presumptively private domain. Air and surface transportation in the United States are governed principally by the antitrust laws, as supplemented by modest amounts of conventional regulation. The path toward rationalized electricity and telecommunications markets lies in carefully targeted, market-based reforms of conventional regulation. Perhaps paradoxically, deregulation increases rather than decreases the premium on creative regulatory solutions. The extensive deregulatory agenda for electricity and telecommunications includes rules for ensuring interconnection with and unbundled access to legacy networks, financing universal service, and managing the transition from conventional cost-of-service regulation to market-based alternatives. These goals demand two tasks of discretionary regulators. First, regulators must maintain competitive neutrality, both as between technological platforms and as between service providers. Second, regulators must remain mindful that dismantling a monopoly can raise the cost of coordinating transactions between competing firms. The greatest regulatory gains rest in simple rules designed to overcome the deregulatory paradox of overwhelming legal complexity.
infrastructure, public utility, regulation, regulated industries, contracts, transportation, electricity, telecommunications, network, neutrality, universal service
Abstract: In this essay, our third and last in a series, we employ our previously developed techniques to measure the power of the Justices in the Rehnquist Court over its full 11 year run. Once again, Justice Kennedy rises to the top of our rankings, as he had done earlier. Our methods identify Justices Souter, Breyer and Ginsburg as being notable either for their influence or lack thereof. In addition, we rejoin the debate on the connection between being the median justice and being the most powerful one. We question whether even the most sophisticated methods of finding the median justice are adequate to the task of assessing power on the Court.
voting behavior, elections, policy, Supreme Court, median justice
Abstract: Do intellectual property rights promote or inhibit legal efforts to protect endangered species and ecosystems? According to the conventional narrative on biopiracy, biodiversity and biotechnology can scarcely coexist. Placing the debate in its proper environmental context demonstrates that both the global south (home to most of earth's threatened and endangered species) and the global north (the source of the capital and technology needed to develop this natural wealth) have overstated the significance of commercial development. Saving biodiversity's hot spots promises far more environmental benefit. Nevertheless, to the extent that bioprospecting can overcome perverse economic incentives to consume natural resources with greater, long-term value, it behooves us to examine biotechnology's impact on biodiversity and the legal framework that regulates this relationship. After examining intellectual property through three conceptual filters - genotypes versus phenotypes, genes versus memes, and pharmaceutical versus agricultural applications of biotechnology - this article reviews the relevant provisions of the Convention for Biological Diversity, the annex on Trade-Related Aspects of Intellectual Property Rights (TRIPS), and the International Convention for the Protection of New Varieties of Plants (UPOV). If the developing world intends to obtain access to northern capital and technology, it is likelier to do so through TRIPS and UPOV than the Biodiversity Convention. This article concludes by urging a reduction in the vehemence of the debate over biodiversity and biotechnology. The attention lavished on clever ways to exploit individual species should yield to a reinvigorated commitment to funding cooperative conservation efforts under the aegis of the Convention on Biological Diversity.
biodiversity, biopiracy, biotechnology, bioprospecting, intellectual property, patents, trade secrets, traditional knowledge, ethnobiological knowledge, genetic resources, Convention on Biological Diversity, Trade-Related Aspects of Intellectual Property Rights, TRIPS, UPOV, genes, memes
Abstract: Biodiversity loss represents humanity's most urgent challenge. No other scientific problem, if left unsolved, will take longer to correct. A proper sense of natural history, spanning at a minimum the entirety of the Phanerozoic eon, informs us that human civilization represents the sixth major extinction event in the last 600 million years of geological history. At a practical level, American environmental law has two basic tools for forestalling the apocalyptic destruction of the biosphere. The National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA) as leading environmental super-statutes fulfill a legal function served by constitutional provisions in other countries. American leadership on environmental protection, particularly in the realm of biodiversity conservation, is threatened by the public's failure to understand evolution, natural history, and the significance of the on-going crisis in biodiversity loss. Opinions by Justice Antonin Scalia in prominent Supreme Court controversies over the teaching of evolution give unjustified aid and comfort to advocates of ignorance in American politics. Justice Scalia's pandering undermines thoughtful efforts to invigorate American environmental law with a conservationist ethic. If human society wishes to retard, let alone to reverse, its tragic record of spurring one of only six mass extinctions among complex life forms in the history of the planet, environmental law must embrace the scientifically valided history of the earth as its story of origins.
Biodiversity, conservation, NEPA, endangered species, environmental law, mass extinctions, Scalia, evolution, creationism
Abstract: Who is the most powerful Supreme Court Justice? In 1996 we measured voting power on the Court according to each Justice's ability to form five-member coalitions. From the set of all coalitions formed by the Court during its 1994 and 1995 Terms, we developed a generalized Banzhaf index of the Justices' relative strength. Generally speaking, participating in a greater number of unique coalitions translates into greater judicial voting power. To supplement the small number of decisions then available, we derived hypothetical five-Justice coalitions from the intersections of actually observed coalitions involving more than five members. Professor Lynn Baker contested our model, favoring instead an additive measure based on the number of times each Justice participated in any winning coalition. This Article stages a new Power Pageant of the Justices in light of the cases decided by the Court since 1996. For more than seven Terms, the Court has retained the same personnel. This stability provides a unique opportunity to test competing measures of judicial voting power. We hypothesized in 1996 that a larger set of cases might obviate the need to resort to inferred coalitions. Analysis of this larger data set in fact undermines the validity of both our measure and that of Professor Baker over the long run. We conclude that there are three different measures of voting power each reflecting a different aspect of judicial power.
Banzhaf index, voting power, Supreme Court, Anthony Kennedy
Abstract: September 11, 2001, changed the world. Exactly five weeks later, the individual right theory of the Second Amendment received its greatest boost ever. In United States v. Emerson, 270 F.3d 203 (5th Cir. 2001), the Fifth Circuit opined that the Second Amendment protects the rights of individuals ... to privately possess and bear their own firearms. This decision may have been the first prominent pronouncement on civil liberties by the federal judiciary after September 11. This article explores emerson in a larger legal and real-world context. It explores the constitutional implications of treating gun ownership as a protected individual right. First, recharacterizing the chief law enforcement officers of the states as members of the militia enables Congress to command them to execute the Laws of the Union. U.S. Const. art. I, Section 8, cl. 15. Printz v. United States, 521 U.S. 898 (1997), which struck down the Brady Bill, should be reconsidered and perhaps overruled. Second, Emerson's underlying logic suggests that the Second Amendment should not be incorporated against the states via the Fourteenth Amendment. Finally, insofar as the individual right theory rests upon an expansive definition of militia, Emerson portends the recognition of a stunningly fecund font of federal police power. Shifting from legal doctrine to empiricism, this article then explores a singular contradiction of the individual rights theory's underlying assumption that widespread gun ownership deters violence. Federal law has historically imposed a comprehensive gun-free zone on one of the principlal channels of interstate commerce: air travel. Nothing in the United States' hastily revamped security matrix permits, let alone encourages, civilian travelers to arm themselves. Commercial aviation therefore challenges the idea of public security through widespread deployment of personal firearms. If total civic disarmament not only promises but actually delivers freedom from violence, broad gun ownership - to say nothing of its protection through constitutional law - loses much of its appeal. As a legal matter, Emerson establishes a modest new civil liberty in exchange for an expansive congressional power. Civil aviation in practice subverts the individual rights theory's approach to public safety. The leading threat to American security today comes from terrorism and asymmetrical warfare. September 11 changed our perspective on private violence and its place in the American constitutional scheme. Neither that scheme nor September 11 justifies the treatment of private gun ownership as a pillar of national security. This is the way the law ends This is the way the law ends This is the way the law ends Not with a whimper but a bang. This article was written under the pseudonym Gil Grantmore.
September 11, Second Amendment, individual rights theory, gun control, airports, Emerson, Printz, fascism, microbiology, bacteriophages, viruses, terrorism, civil liberties, militia, Osama bin Laden, Ashcroft
Abstract: Price-level, or "price-cap," regulation is a leading alternative to the traditional technique of monitoring a regulated firm's profits. In lieu of traditional restraints on the regulated firm's profitability, the price-level alternative entitles a regulated firm to conduct its business as it sees fit, provided that its prices do not rise above a certain level. This practice addresses three of the most severe defects in conventional cost-of-service regulation. First, as stated in the celebrated Averch-Johnson hypothesis, perverse incentives arise from a profit-regulated firm's ability to pass operating costs through to ratepayers and to collect a return on all putatively prudent investment. Second, regulated firms have historically shifted money between regulated and unregulated lines of business. Finally, conventional rate-of-return regulation is slow and expensive. Price-level regulation also facilitates Ramsey pricing. In a regulated environment, the pricing methodology that minimizes the social loss from setting prices above marginal cost is one that allocates fixed costs among different products in inverse proportion to the elasticity of demand for each product. Price-level regulation overcomes administrative difficulties in Ramsey pricing by delegating cost allocation decisions to the regulated firm. Even without knowing demand elasticities, a regulator can implement Ramsey pricing by allowing the regulated firm to allocate prices among its own customers. The degree to which price-level regulation facilitates Ramsey pricing depends on the extent to which regulators eschew "sharing" mechanisms designed to capture the price-capped firm's profits for its customers' benefit. The greater the degree of sharing that regulators mandate, the lower the regulated firm's incentive to engage in Ramsey pricing. Price-level regulation combines benchmarks of prices with fine adjustments of a regulated firm's freedom to raise prices. After regulators determine an appropriate initial price level, an effective cap requires periodic adjustments to an inflation index and to certain 'exogenous' changes outside the firm's control, coupled with a percentage offset for anticipated productivity gains. A price cap thus varies (1) upward, according to a gauge of general inflation, and (2) downward, in anticipation of the extent to which the regulated industry will experience faster productivity growth than the economy at large. This paper examines American legal decisions involving price-level regulation. It examines the adoption of inflation indexes as well as the computation of the so-called X-factor, which purports to reduce price caps according to improvements in industrial productivity. It criticizes the mismanagement of both prongs of the price-level strategy by American regulators and judges. In particular, American price-cap schemes continue to apply inappropriate measures of price change, both in the economy at large and in specific industries. In the two decades since its introduction in the United Kingdom, however, price-level regulation has become the dominant form of rate regulation in the United States. As of 2002, no fewer than 48 states have adopted price-level regulation as their default method for regulating incumbent local exchange companies. Not without reason is price-level regulation regarded as the mostly successful "final stage in a century of developing ratesetting methodology." Although it is unclear whether price-level regulation has provided adequate incentives for capital investment, the infusion of stronger incentives to improve efficiency renders price-level regulation a great success.
price-level regulation, price caps, inflation, consumer price index, x-factor
Abstract: The mass marketing of foods derived from organisms modified through recombinant DNA technology has put extreme pressure on the interpretation and implementation of the United States' basic food safety law, the venerable Food, Drug & Cosmetic Act. In its classic form, the FD&CA reflects its Progressive and New Deal roots. It vests enormous trust in a specialized agency, the Food and Drug Administration, which is presumed to have nonpareil expertise over food safety. The political reality of GM foods, however, has placed the FD&CA and its implementation by the FDA in severe tension with the Organic Foods Production Act and with commercial speech doctrine. Fear about food is one of the most deeply seated forms of behavioral protection against the natural world. It is precisely here, where food comes into contact with notions of good and evil, that the classic regulatory state must take its stand. The FDA's regulation of foods using rDNA technology upholds the best of the Progressive regulatory tradition and deserves to survive the challenge posed by the OFPA, the revived commercial speech doctrine, and contemporary consumer distrust of governmentally supervised review of science and safety.
food, food safety, FDA, FD&CA, organic foods, labeling, commercial speech, consumer protection
Abstract: Legal scholarship on information policy often invokes environmental metaphors. Some scholars fear that repeated legal resort to spatial metaphors will balkanize the World Wide Web, while others urge policymakers to treat telecommunications infrastructure as an environment rather than a highway. Still others urge the development of an intellectual commons movement based on political activism among environmentalists. This article brings the grand analogy full circle. How would environmental policy look if we treated the biosphere as an information platform? This article compares the natural environment with other information platforms such as the Internet. At the appropriate level of abstraction, the electronic commons and the biosphere present similar regulatory challenges. The two realms do differ fundamentally. Although humanity is generating and accruing information of its own design at an exponential rate, human activity is destroying biological information at a pace that qualifies our time as one of the great extinction spasms in geological history. This article then sharpens the comparison between natural and electronic information platforms on a layer-by-layer basis. Every information platform consists of three layers: physical, logical, and content. The biosphere is no exception. This article derives two principles from an examination of the end-to-end principle that underlies the design of the Internet: the maintenance of competitive neutrality and the tailoring of property rules according to the rivalrousness in the use of resources. Components of the environment can and should be analogized with the corresponding parts of a communications network. Land masses, bodies of water, and the atmosphere comprise the physical layer of the environment, while the genetic information encrypted in species and individuals represents the content layer. As is true of communications networks, the logical layer defies easy definition. The incompletely theorized concepts of ecosystem productivity and stability appear to be the best candidates. At each layer, varying degrees of rivalrousness suggest divergent approaches to defining rights in different components of the environment and to patrolling the exercise of those rights. This comparison of natural and human information platforms concludes with a glimpse at the expressive, even quasireligious aspects of the natural world as humanity's deepest well of creative inspiration. Just as the romance of authorship has severely impaired the development of cogent policy for intellectual property in a globalized, information-based society, ineffaceable traces of ecologically inspired spirituality often hamper the quest for solutions to humanity's deepest environmental crises. This article closes with a brief and necessarily imperfect prognosis of the law's ability to reconcile natural spirituality with scientific knowledge.
biodiversity, endangered species, habitat destruction, invasive species, biopiracy, ethnobiological knowledge, information policy, information platforms, physical layer, logical layer, content layer, applications layer
Abstract: The production, marketing, and delivery of beverages are enterprises so vast that fully to comprehend [them] would require an almost universal knowledge ranging from geology, biology, chemistry and medicine to the niceties of the legislative, judicial and administrative processes of government. Queensboro Farm Prods., Inc. v. Wickard, 137 F.2d 969, 975 (2d Cir. 1943). So extensive are the legal complexities at issue that the typical North American coffee service traverses nearly the entire range of allocative and redistributive considerations within the law of trade. A simple carafe of coffee, with cream and sugar on the side, vividly illustrates the tradeoff between comparative advantage and redistributive goals in the formation of trade policies.
Trade, taxation, agricultural policy, dairy program, sugar program, political economy, international law
Abstract: This article addresses two questions. First, it asks what law can learn from linguistics. Second, it asks what linguistics might tell us about the way we learn law. Scholarship on law and linguistics has focused so far on matters of semantics, syntax, and pragmatics - the essentials of meaning, sentence structure, and noncontextual aspects of language. The next wave of scholarship on law and linguistics should focus on finding the most fruitful level of scientific specificity. Most errors by lawyers as amateur linguists can be traced to the assumption that language is a static mechanism rather than a living organism. Instead of focusing on incomplete translation metaphors, this article asks how ordinary humans master any language, not merely the specialized language of the law. By comparing theories of childhood language acquisition with law and its interpretive process, this article seeks nothing less than the legal equivalent of Noam Chomsky's universal grammar - what Lon Fuller described as the morality that makes law possible.
linguistics, syntax, language acquisition, Chomsky, Fuller, Scalia, Solan, statutory interpretation, statutes
Abstract: The Supreme Court's dormant commerce clause doctrine, a body of jurisprudence as deep as it is despised, provides the strongest constitutional bulwark against hostile state regulation and taxation of the national economy. Academic critiques of the dormant commerce clause, typically rooted in the doctrine's lack of a firm textual basis in the Constitution, overlook the crucial role of Congress. Congress's persistent failure to repeal the dormant commerce clause is the singularly impressive feature of American constitutionalism's approach to protecting free trade. Though it has failed to win academic support, congressional silence provides at least an adequate and perhaps even a persuasive case for preserving the dormant commerce clause. As a general rule, Congress cannot override judicial interpretations of the Constitution merely by passing ordinary legislation. The dormant commerce clause is an important exception. Despite enjoying virtually unfettered discretion to override dormant commerce clause decisions, Congress has rarely used that power. Constitutional significance abides throughout: in order to evaluate the propriety of contemporary dormant commerce clause doctrine, we must assess not only Congress's power to override the courts, but also Congress's actual course of performance in the exercise of that power. I then examine the theoretical question of congressional competence. Congress's power to square state law with the commerce clause should not be compared with, but rather distinguished from, other constitutional doctrines that limit state and local authority over the national economy. A pair of supremacy clause doctrines - intergovernmental immunity and preemption - provide especially useful analogies. Finally, I take an unapologetically pragmatic view of congressional performance. The dormant commerce clause doctrine effectively treats the commerce clause as though it were an initial assignment of common law authority to the federal courts. Congress's persistent failure to reassign that authority to itself, to federal regulatory agencies, or to the states suggests that the federal courts have demonstrated reasonably sound judgment on issues of interstate trade and taxation. This meritorious history deserves constitutional respect. A pragmatic approach to constitutional law - one that treats questions of rights, privileges, duties, powers, and immunities as if they materially affected the well-being of real human beings - can happily accept the de facto ratification of the dormant commerce clause through congressional inaction.
dormant commerce clause, commerce clause, interstate commerce, supremacy clause, intergovernmental immunity, preemption, congressional acquiescence, delegation
Abstract: The neologism "biolaw" describes all areas of law informed by the life sciences. Health law, bioethics, environmental law, natural resources law, agricultural law, food and drug law, biotechnology, law and neuroscience, law and behavioral psychology, and evolutionary analysis of law all share a common scientific core. Lawyers and legal scholars too often address these topics in isolation. This piecemeal approach undermines the scientific cohesion that connects these areas of legal practice and theory. The common core, of course, is biology - all of the life sciences, unified in pursuit of subjects considered worthy of legal attention.
This essay defines biolaw as the field of law and the life sciences in its entirety. Part I of this essay will provide a brief guide to the various branches of biolaw. Part II offers some thoughts on the intellectual significance of treating biolaw as a scientifically coherent enterprise. In other words, I will first define biolaw. Then I will explain why it matters.
biolaw, health sciences, health law, bioethics, environmental law, natural resources, agriculture law, food and drug law, biotechnology, neuroscience, behavioral psychology
Abstract: Architecture is destiny. As much as information today determines the contemporary wealth of nations, the physical world retains its relevance. Architecture affects crime rates, arguably even collegiality among professors. The interplay between the physical and the ethereal likewise shapes the constitutional doctrine that facilitates the free flow of ideas. The structure of a communicative medium dictates its performance. Awareness of the structure of information markets improves the calibration of intellectual property and refines legal responses to potential electronic bottlenecks. This article takes the next logical step: revealing the deep doctrinal structure of legal efforts to influence the design and maintenance of communicative conduits. This article's examination of free speech jurisprudence begins by describing how any communicative medium can be visualized as three distinct physical, logical, and content-based layers. End-to-end design, the Internet's operative ideal, also provides a crucial doctrinal metaphor. Like the conduits through which communications pass, free speech jurisprudence can also be analyzed layer by layer. Cases involving the regulation of the time, place, or manner of speech comprise the physical layer, in which regulatory prerogative generally prevails. By contrast, most forms of content-based regulation draw strict scrutiny. In a perverse twist of the end-to-end principle, the intelligence in first amendment jurisprudence resides at its edges. Though the Supreme Court has achieved doctrinal stability in reviewing content-based restrictions and time-place-manner rules, the Justices have behaved erratically whenever they have examined the intermediate logical layer - cases involving the regulation of specific communicative conduits. The Court has not developed a cogent approach to regulations designed to structure channels of communication that mediate between physical space and eventual expression. A generation ago, decisions affirming comprehensive federal power over broadcasting practically defined conduit-based regulation of speech. Broadcasting cases cannot be squared with strict scrutiny of content-based regulation of speech. Since 1978 the Supreme Court has proved quite uneven in keeping pace with technological changes in communications. After locating the doctrinal baseline established in the broadcasting cases, this article surveys more recent cases involving cable television and sexually explicit speech in a variety of media. Four interrelated rationales for conduit-based regulation of speech have emerged: scarcity, regulatory intensity, the government's interest in enhancing voices, and a conduit's pervasiveness. Although each of these rationales is superficially plausible, deeper inspection counsels a skeptical regard for the notion that conduit-based regulation merits distinctive first amendment treatment. This article accordingly disavows the strategy of adjusting first amendment standards of review in response to putative differences among conduits. In reviewing conduit-based restrictions on speech, courts should remain wary of disguised efforts to control content. The end-to-end principle counsels simple standards for reviewing regulation aimed at the logical layer of speech. Real information is ideally transmitted on simple protocols that allow speakers and listeners to control all intelligence within a network. Likewise, a constitutional jurisprudence that minimizes reliance on conduit-based distinctions best protects free speech.
free speech, constitutional law, first amendment, layered model of information, broadcasting, pornography, indecent speech, cable television, Internet, satellite television, public interest, FCC, Communications Deceny Act, CDA, Child Online Protection Act, COPA
Abstract: The most significant drivers of biodiversity loss can be described by HIPPO, the Greek word for horse. Habitat destruction, Invasive species, Population, Pollution, and Overkill - in that order - are causing species losses on a magnitude worthy of one of geological history's great extinctions. Unfortunately, existing legal tools for addressing biodiversity loss are aimed precisely where human agency hurts least. The Endangered Species Act, for instance, more clearly punishes overkill than either habitat destruction or the introduction of alien invasive species. This brief article describes the predicament and prescribes a modest agenda for improving the law of biodiversity conservation.
Biodiversity, Endangered Species Act, habitat destruction, invasive species
Abstract: Inflation touches many areas of law, and the law's response to inflation constitutes a policymaking opportunity in its own right. Legislators have long realized that the use of specific dollar figures or economic formulas can render statutes obsolete. Yet Congress's response to the most basic type of economic change hardly reflects careful policymaking. Federal statutes specifying one price index strongly favor the Bureau of Labor Statistics' Consumer Price Index (CPI) over the implicit price deflator (IPD) derived from the Bureau of Economic Affairs' computation of the gross domestic product. The IPD, however, boasts two methodological advantages that enable it to outperform the CPI in many circumstances. The IPD not only covers a deeper range of goods and services in the economy; it also eschews the fixed-weighted market-basket approach of the CPI. Both features offset the CPI's tendency to over report the rate of price change in the U.S. economy. Adopting the superior inflation index does present a daunting legal task. Because courts cannot countermand specific legislative references to one index or the other, and because neither index suits for all legislative needs, substitution of the IPD for the CPI (or vice versa) must almost invariably be achieved through piecemeal amendment. This article begins by providing a very brief comparison of inflation with discount rates and purchasing power parity. It then discusses how legal responses to inflation can affect a wide range of interests, some of which transcend the strictly economic realm. The article focuses on manifestations of the phenomenon in three discrete areas of public law: taxation, constitutional law, and rate regulation. Congress's preferred method of accommodating macroeconomic volatility suffers from serious drawbacks. After conducting a detailed comparison of the CPI with the IPD, this article suggests potential solutions for flawed legal measures of inflation.
Inflation, discount rates, purchasing power parity, consumer price index, implicit price deflator, price-level regulation
Abstract: Telecommunications mergers are at once a historical mirror and a harbinger of the legal future. Since the passage of the Telecommunications Act of 1996, no significant telecommunications merger has failed to receive regulatory approval in the United States. The Telecommunications Act of 1996 has accelerated the trend toward consolidation and concentration. Having devoted most of its energy on issues doomed to become technologically and economically obsolete, the Act failed to anticipate the technological conditions (especially the emergence of the Internet) that drove telecommunications carriers to consolidate. Nevertheless, possible avenues for reform remain open should the federal government ever conclude that the anticompetitive potential of telecommunications mergers outweighs their salutary effects.
Abstract: The original opinion in Brown v. Board of Education, 347 U.S. 483 (1954), did not direct a remedy for the constitutional injury suffered by students in segregated schools. The following Term, the Supreme Court revisited the remedial issue in a second case styled Brown v. Board of Education, 349 U.S. 294 (1955). Brown II remanded the desegregation cases with instructions to "take such proceedings and enter such orders and decrees consistent with this opinion as are necessary and proper to admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to these cases." The infamous "all deliberate speed" formula and the South's massive resistance to desegregation arguably dissipated much of Brown I's promise. Half a century later, Brown II's contested legacy endures. Many of the social ills that continue to plague the contemporary United States - residential segregation, disparities in achievement and opportunity, the concentration of poverty and other social pathologies in inner cities - can be traced to the imperfect implementation of the Supreme Court's desegregation orders. By the same token, today's political and legal order is committed, as no previous generation of Americans has ever been, to Brown I's vision of education as an essential component of intergenerational justice. The responsibility for effecting justice and transmitting wisdom across generational lines falls squarely upon the adults who have lived and contested the tumultuous life of the Republic under Brown. Legal scholars bear a special moral obligation to undo the "enduring disability" that has been inflicted on generations of children by the failure to fulfill Brown I's promise that full educational opportunity would "be made available to all on equal terms."
Brown, Brown II, remedies, desegregation, public schools, separate but equal, civil rights, equal protection, children, intergenerational justice
Abstract: In his celebrated 1959 lecture, "The Two Cultures," C.P. Snow excoriated the conflict between the scientific and literary cultures. That conflict still resonates in a society crippled by cultural divides over a wide range of scientifically sophisticated issues, such as climate change, biodiversity loss, childhood vaccination, embryonic stem cell research, abortion, and end-of-life decisionmaking. C.S. Holling, Lance Gunderson, and Donald Ludwig have responded to Snow's challenge by proposing an integrative theory of panarchy for organizing our understanding of the dynamics underlying complex economic, ecological, and institutional systems. Drawing lessons from the intertwined Greek myths of Midas, Hermes, and Pan, this essay concludes that the quest for truth in science and in law will favor those who, like the god of unpredictable change, have long heard and always will hear the music.
The Two Cultures, C.P. Snow, C.S. Holling, panarchy, complexity, complex adaptive systems, mythology
Abstract: The craft of librarianship should inform the law governing the acquisition, preservation, and transmission of knowledge. Drawing upon T.S. Eliot's works of literary criticism, part I of this article describes the contradictory role of cultural memory in a society saturated with new information. Even as the accumulation of information in a technologically explosive society heightens the value of the most prominent cultural landmarks, each distinct cultural expression commands an ever-diminishing amount of attention. Parts II and III turn from literary theory to legal doctrine. After reviewing the Supreme Court's cases on library management, part II endorses two basic principles within the law of librarianship as a branch of First Amendment jurisprudence. First, decisions to acquire material should lie beyond judicial challenge. Second, legislative mandates to exclude material should draw strict scrutiny and should be presumed unconstitutional. Part III concludes that uncertainty within the Supreme Court's jurisprudence on librarianship should be resolved in favor of more liberal access to information.
First Amendment, freedom of speech, libraries, T.S. Eliot, Pico, American Library Association
Abstract: Constitutional Commentary has decided to abandon The Chicago Manual of Legal Citation in favor of The Bluebook: A Uniform System of Citation. This decision should not be construed as a wholesale endorsement of the Bluebook. Constitutional Commentary feels no obligation to defer to the law reviews at Harvard, Yale, Columbia, and Penn on any subject, least of all on questions of legal citation. Constitutional Commentary has identified specific Bluebook rules that it will ignore, modify, or clarify. All rules of legal citation, including those outlined here, may be suspended when common sense so dictates. Where Bluebook rules have proved undesirable, unworkable, or ugly in the experience of Constitutional Commentary's editors, they will be broken without hesitation or regret. In the spirit of norm entrepreneurship, Constitutional Commentary invites other journals to adopt any of its rules. Acknowledgement is appreciated but not necessary.
citation, Bluebook, Maroonbook, Chicago Manual, Constitutional Commentary, norm entrepreneurship, norms, bibliography, legal scholarship
Abstract: The most significant drivers of biodiversity loss can be described by HIPPO, the Greek word for horse. Habitat destruction, Invasive species, Population, Pollution, and Overkill - in that order - are exterminating species at a rate worthy of one of geological history's mass extinctions. Unfortunately, existing legal tools for stemming biodiversity loss are aimed precisely where human agency matters least. The Endangered Species Act, for instance, more clearly punishes overkill than either habitat destruction or the introduction of alien invasive species. This article describes the predicament and prescribes a modest agenda for improving the law of biodiversity conservation.
Biodiversity, Endangered Species Act, habitat destruction, invasive species, bioprospecting
Abstract: The United States lags behind many other countries in wireless telephony despite its wealth and relatively high rural population. The answer to this conundrum may lie in the United States' commitment to cooperative federalism in the administration of subsidies for rural telephone service. The federal universal service program for rural and high-cost areas relies on a cooperative scheme of joint federal and state regulation. State regulators must administer the program without discriminatory regard to carriers' incumbency status or their technological platforms. When state regulators determine the public interest to be served by competitive entry into rural and high-cost markets, competitive neutrality and consumer choice should be paramount. Yet incumbent carriers have tried to persuade state regulators to inject an affirmatively unlawful factor: the impact of competitive entry on the solvency of the Universal Service Fund. Insofar as most competitive rural carriers deploy wireless infrastructure in whole or in part, it is worth noting that federal law preempts state-law regulation of rates or entry in the market for commercial mobile radio services. Federal mechanisms for subsidizing rural telephony demonstrate the irreconcilable conflict between decentralization and deregulation. Insofar as state regulators are not prepared to complete the transition from traditional public utility regulation, they deserve no deference. Indeed, this article argues that there should be no deference whatsoever to interpretations of law and other exercises of discretion undertaken by state regulators charged with implementing federal telecommunications law.
federalism, telecommunications, wireless, rural, regulation, states, FCC, Federal Communications Commission, competition, subsidies, universal service, Universal Service Fund
Abstract: A specter is haunting America, the specter of agricultural supremacy. Farm advocates have protested the decline of agriculture as an autonomous enterprise. After centuries of producer primacy, the agrarian state is withering away in the face of the reality that putting farmers first puts consumer and environmental interests last. Karl Marx condemned the German Ideology as the fallacy that civilization begins with any step besides the acquisition of food, fiber, and fuel. The American Ideology is the fallacy that civilization ends upon the acquisition of food, fiber, and fuel. Bourgeois yearning to be delivered from necessity into freedom has catapulted America into world dominance. Agrarian discontent amid material abundance proves that American agriculture is not Marxist enough. All hitherto existing law reflects the history of agrarian class struggle. The legislative explosion of 1862 gave farmers direct subsidies and access to the highest levels of government. But this success destroyed farmers' cultural and economic independence. What is true of evolutionary biology is also true of agricultural economics: the same Red Queen that stalks species in an evolving ecosystem pushes farmers first to adapt or die and eventually to adapt and die. Stasis is the agroecological opium of the masses. The only value held dear by the American Ideologue is maximizing the market for the labor of agriculture's entrepreneurial class. Consumer health, social wealth, and environmental integrity are all secondary. Come the revolution, a new bourgeois populism will restore the middle-class masses to their proper supremacy over pampered producers. America should treat agriculture like any other industry, as subject as toilet manufacturers to the fickle fluctuations of consumer demand. Behold the Consumerist Manifesto: Let farmers classes tremble at the feet of competition. Bourgeois consumers have nothing to lose but their bucolic illusions. They have a world to win.
farming, agriculture, agricultural law, Marx, Marxism, rbST, homesteading, reclamation, consumers, welfare
Abstract: Professor Thomas Merrill has argued that Supreme Court Justices' propensity to engage in cooperative behavior may stem from the stability or volatility of the Court's personnel. When the Court's membership is in flux, he asserts, the Justices tend to behave like players in a one-shot or short-term game. Multiple coalitions flourish, but none dominates and all tend to hedge their doctrinal bets against imminent changes in the Court's personnel. By contrast, when the same nine Justices convene across multiple Terms, the Court tends to reflect the strategy of a repeat game. Dominant coalitions, few in number and stable in composition, feel much freer to fashion doctrinal innovations. This article subjects Professor Merrill's cooperative behavior hypothesis to a variety of empirical tests. To determine whether long periods of stability in Supreme Court personnel correspond with bold doctrinal development, this article applies three separate tests of legal innovation: (1) the propensity of a Court to render influential decisions during particular Terms, (2) the influence of a Term's work as a whole based on subsequent citations, and (3) the number of overruling decisions rendered during any given Term. These admittedly imperfect tests provide little support for Professor Merrill's hypothesis. If anything, both citations and overrulings suggest that the arrival of new Justices tends to spur rather than retard doctrinal movement. To the extent that stable membership does enhance the Supreme Court's marginal propensity to cut new doctrinal ground, that tendency apparently imparts less influence than other factors. A preliminary look at the historical record suggests that judicial behavior, like all other complex phenomena, depends on numerous variables whose interdependence eludes easy detection.
Supreme Court, Justices, innovation, overruling, citations, empirical, influence, decisions, stability, volatility, Rehnquist,, Fuller
Abstract: This essay addresses questions of truth and beauty, of poetry and fidelity, as applied to legal education and ultimately to law. After discussing how law schools can most faithfully translate their teachings to lawyers' real concerns, I shall ponder how the law itself reconciles its duty to truth with its practitioners' longing for beauty.
truth, beauty, poetry, literature, fidelity, translation, science, history, Watson, Holmes, FitzGerald, Keats, Khayyam, legal education, law schools
Abstract: Korematsu v. United States, 323 U.S. 214 (1944), presented a constitutional conundrum: How did the Supreme Court justify subjecting an act of the United States government to the demands of the equal protection clause of the fourteenth amendment, a full ten years before the development of the reverse incorporation doctrine of Bolling v. Sharpe, 347 U.S. 497 (1954)? The solution to this problem of premature adjudication explains an extraordinary number of doctrinal wrinkles in contemporary constitutional jurisprudence. The California attorney general who inflamed the anti-Japanese sentiment leading to Korematsu, Earl Warren, later presided as Chief Justice over the rise of a three-pronged consensus that defined civil rights law throughout much of the later twentieth century. First, according to Bolling's reverse incorporation doctrine, fifth amendment due process binds the federal government to equal protection standards that constrain states under the fourteenth amendment. Second, Congress enjoys expansive power under Section 5 of the fourteenth amendment to enforce the substantive guarantees extended by Section 1 of that amendment, particularly due process and equal protection. Third, the expansive power of Congress over interstate commerce, first recognized during the New Deal, includes the power to pass comprehensive civil rights legislation. The Warren Court's civil rights consensus, which may be called the Nickel and Five, would unravel in subsequent decades. The Burger Court sustained all three prongs of its predecessor Court's approach to civil rights. But the issue of race-based affirmative action exposed a fundamental tension between the Nickel of reverse incorporation via fifth amendment due process and the Five of expansive congressional power under Section 5 to define the substantive content of fourteenth amendment due process and equal protection. The revival during the Rehnquist Court of meaningful judicial review of Congress's commerce clause and Section 5 powers has effectively reduced the Warren Court's civil rights legacy to reverse incorporation. The Warren Court's insistence upon judicial equivalence in the review of racial classifications under federal and state law could not coexist with an expansive vision of congressional power over civil rights. The Nickel and Five has collapsed, and with it has fallen Earl Warren's magisterial vision of equal justice under law.
Civil rights, reverse incorporation, due process, equal protection, commerce clause, Korematsu, Bolling, Morgan, Lopez, Seminole Tribe, Earl Warren, Warren Burger, William Rehnquist
Abstract: According to Richard Hofstadter, the United States was born in the country and has moved to the city. As a result, the quest to divine meaning from the United States Constitution might more profitably speak of farmers' intent rather than framers' intent. This article proposes a seminar on The Potable Constitution, a tour of American constitutional law using naught but cases involving liquor, beer, wine, and milk.
constitution, constitutional law, farmers, agriculture, beverages, beer, wine, liquor, milk, dairy, commodities, humor, Eighteenth Amendment, Twenty-First Amendment, commerce clause, dormant commerce clause, equal protection, freedom of speech, commercial speech
Abstract: The Harvard Law Review is the Word of Law. America's premier student-edited law review derives much of its reputation from its premier student-written features. Written in a coporate yet incorporeal voice, Harvard's Supreme Court and Development notes have epitomized the fiction that student-written legal commentary should be regarded as a collective product. Throughout it all the Review has never forgotten its humble origins as the brainchild of a small group of Harvard students. Till now. The Harvard Law Review's 1999 Developments note, dedicated to "The Law of Cyberspace," 112 Harv. L. Rev. 1574, trashed a half-century of tradition by breaking into the first-person singular. Behold the new covenant, cast in the hallowed pages of the Harvard Law Review: "Le droit, c'est moi."
Harvard Law Review, Developments, Supreme Court, student writing, cyberspace, Coughlin, Mark, legal scholarship
Abstract: Fiat lux .... In the beginning God created the heaven and the earth. And as sin came into the world, so too did the possibility and the promise of redemption. The Book of Genesis' accounts of Creation supply three distinct ethics that inform agriculture as the profoundest point of contact between humanity and the natural world. The combatants in the debate between conventional and alternative agriculture have co-opted the dominion ethic of Genesis' first account of Creation and the stewardship ethic of the Scriptures' second account. But these intrinsically romantic accounts overlook a third ethic, the survival ethic that God pronounces upon expelling Adam and Eve from Eden. Fiat lex .... In the beginning was the farm, and the farm was with the law, and the farm was the law. Modern American agricultural law may have been born during the developmental dawn of 1862, but the beast had spent nine decades in gestation. The Constitution itself included the first two pieces of agricultural law in the United States: the accommodation of slavery and the apportionment of Senate seats by territory. The politics of slaves and Senators defined American agricultural policy well past the Civil War. The curse of slavery as American agriculture's original sin grips us still. So tight is the grip that the entire history of racial oppression in America can be succinctly stated in agricultural terms. And the darkness comprehended it not .... The Agrarian manifesto, I'll Take My Stand, provides a touchstone by which Americans can reflect upon their country's agricultural history and upon the South's unique contribution to that history. Agrarian romanticism, as embodied in Agrarian ideology, conceals the depravity and original sin of American agriculture. Look homeward, America, to the Dixie where you were born early on one frosty mornin', and you will reap the bitter harvest that your founding farmers sowed. The first shall be last, and the last shall be first . . . . Any redemption of American agriculture and the law it has spawned surely does not rest in the idolatrous attribution of divine power to the farmer. In a world without agrarian virtue, on face of an earth cursed for Adam's sake, the only redemption possible is a redemption without romance. Hand in hand, with wandering steps and slow, let us through Eden take our solitary way.
agriculture, agricultural history, Genesis, creation myths, slavery, Civil War, South, Agrarians, Milton, Paradise Lost
Abstract: Degeneracy, like beauty, is in the eye of the beholder. Much of the religiously motivated political activism in the contemporary United States arises from the belief that landmark Supreme Court cases such as Roe v. Wade and Eisenstadt v. Baird not only were wrongly decided, but also underlie many of the social pathologies that afflict the country. In the spirit of The Sount of Legal Thunder: The Chaotic Consequences of Crushing Constitutional Butterflies, http://ssrn.com/abstract=939969, this essay ponders what might have been if the Supreme Court had never decided either Roe or Eisenstadt. One surprising possibility might be judicial recognition of a right to same-sex marriage.
constitutional law, chaos theory, Roe v. Wade, Eisenstadt v. Baird, abortion, contraception, marriage, homosexuality, substantive due process, equal protection, same-sex marriage
Abstract: Lemon isn't dead, but contra is. Once upon a time, truth was truth, and we had a way to signal what wasn't. Until 1996, the Bluebook directed lawyers to use contra when cited authority directly states the contrary of the proposition. The 16th edition of the Bluebook removed contra from the list of valid introductory signals. The death of contra is the latest, surest sign of decadence and decline in American legal culture. It symbolizes the subtle subversion of law and legal scholarship. Where once clarity ruled, negation now lacks legal voice. Poor contra! A legal culture that neither knows contra and nor respects its power is one in which the Supreme Court can spurn a condemned man's habeas petition because the Court had used cf. instead of see in another man's case. Lambrix v. Singletary, 520 U.S. 518 (1997). O contra, now sent to Heaven, cursed by your fate. Accord, remain; you will be used, in courts as in the law reviews. Give us a way to signal lies, and forgive our omitted parentheticals, as we forgive those who force us to write parentheticals. And mock us not with citations, but deliver us from pedants. For in Hell there will be nothing but law, and the Bluebook will be meticulously observed.
contra, citations, Bluebook, Harvard, Lambrix, accord, post-modernism, law reviews, legal writing, humor, satire
Abstract: American agricultural law's environmental record is a legacy of legislative failure. Most of the blame can and should be attributed to the failure of the law to separate ecological objectives from competing and ultimately contradictory economic objectives. Two strains of agroecological fallacies loom large. A macroecologial variant of the agroecological argument supposes that agriculture is environmentally benign or even ameliorative. A more fearsome fallacy may not exist. Agriculture is one of the most resource-depleting economic activities and deserves to be treated accordingly. The microecological variation on agroecological reasoning favors improving agriculture's environmental performance by reducing farm sizes and dispersing farm ownership. In ecological terms, it is supposed, small farms are better, and small family farms are best. Such a pity that none of this is true. Economic theory and empirical evidence subvert every agroecological claim, especially those based on farm size and ownership structure. This article exposes four specific types of agroecological fallacies. First, statutes putatively designed to protect the environment are often more honestly described as programs for boosting commodity prices and farm incomes by restricting output. Second, explicit farm income support programs are dishonestly justified as environmental measures. Third, whenever a law threatens the economic interests of farmers, particularly smaller freeholders, opponents decry the law as a threat to the environment and only secondarily, if at all, as an economic menace. Finally, lobbyists often use specious environmental arguments to justify agricultural exceptions from a generally applicable system of regulation. The solution is as transparent as it is simple. Environmental protection must be decoupled from agricultural protectionism. Farmers need to get green or get out.
agriculture, farms, farming, environmental protection, subsidies, dairy, water, reclamation, incomes, soil, conservation, erosion, depletion, resources, family farming, market structure, industrial organization
Abstract: We analyze the relative voting power of the Justices based upon Supreme Court decisions during October Term 1994 and October Term 1995. We take two approaches, both based on ideas derived from cooperative game theory. One of the measures we use has been used in connection with voting rights cases. After naming the Most Dangerous Justice, we conclude by identifying and explaining the inverse relationship between seniority and voting power.
Shapley-Shubik index, Frank-Shapley index, Banzhaf index, voting power, Supreme Court
Abstract: Half a century after Brown v. Board of Education, 347 U.S. 483 (1954), some truths have emerged. School desegregation came late and accomplished far less than its beneficiaries might have hoped and certainly deserved. Like the Civil War, however, Brown merits respect if only because the contrary outcome would have been so abominable. For all its flaws, the judicial sequence beginning with Brown is vastly preferable to its obvious alternative: a perpetuation of racial segregation by law under the odious separate but equal doctrine of Plessy v. Ferguson, 163 U.S. 537 (1896). In this light, it seems as discourteous to condemn Brown as it is to lament Union victory in the Civil War. The day on which the Supreme Court of the United States finally abandoned Plessy and repudiated public school segregation as a practice repugnant to the Constitution therefore deserves to be memorialized in a fashion befitting the jubilee known as Juneteenth. Indeed, May 17, 1954, deserves a name of comparable mirth. Mayteenth will do.
Brown, desegregation, separate but equal, Plessy, Civil War, civil rights, equal protection, Warren Court, Cold War
Abstract: This article addresses the essential jurisdictional dispute in Iowa Utilities Board v. FCC. Professor Chen argues that the Eighth Circuit erred in finding that the FCC lacked jurisdiction to issue a rule on the appropriate price of establishing local exchange facilities and services. In light of the Chevron doctrine and the larger tradition of judicial deference in public utility regulation, Professor Chen argues the appeals court should have upheld the FCC's rulemaking authority. Professor Chen contends that the Eighth Circuit's flawed analysis masks an unfounded belief that federalism justifies a strict limit on the FCC's jurisdiction. He concludes that the Supreme Court should reverse this aspect of the Eighth Circuit's decision in its forthcoming review of Iowa Utilities Board.
TELRIC, Telecommunications Act, Federal Communications Commission, Chevron, federalism
Abstract: Time travel and chaos theory are staples of science fiction. This symposium introduction proposes the extension of those concepts to constitutional law. What consequences - positive, negative, unintended - would flow from the stomping of a single development in American constitutional history?
chaos, chaos theory, constitutional law, science fiction, fantasy
Abstract: William Jennings Bryan dominated American politics at large for nearly three decades. Thrice he sought the presidency. Thrice he lost. Perhaps no other American politician has had greater influence by losing. The publication of Michael Kazin's biography, A Godly Hero: The Life of William Jennings Bryan (2006), reminds us that the Great Commoner was far more than the sum of the Cross of Gold speech and the trial of John Scopes. Bryan singlehandedly transformed the Democratic Party from a conservative, almost reactionary, party opposed to the exertion of federal power into an activist party advocating the aggressive deployment of federal resources and legal coercion on behalf of the working class. Even though free silver and redistribution through inflationary monetary policy soon faded from the Democratic Party's agenda after 1896, the other elements of the Democratic domestic platform utterly transformed American law and politics. Bryan, for good and for ill, served as a harbinger of numerous political movements. The New Deal, the Great Society, the religious right, and an emerging Christian left all owe their origins to the political career of William Jennings Bryan. To be sure, Bryan was the prophet of free silver and the scourge of evolution. But today as during the days of his life, mostly W.J.B. is the voice of the people.
William Jennings Bryan, Great Commoner, Cross of Gold, John Scopes
Abstract: This is an article about rock 'n' roll. Rock lyrics can help explain the constitutional jurisprudence of the Supreme Court.
Constitutional law, Supreme Court, music, rock 'n' roll, lyrics, Rehnquist, Beatles, Rolling Stones, Natalie Merchant
Abstract: Hurricane Katrina broke America's collective heart. No previous natural disaster in the nation's history inflicted a grimmer toll. The legendary city of New Orleans all but sank when its levees failed and the resulting storm surge drowned much of the city and many of its feeblest, most vulnerable residents. Katrina exposed flaws in virtually every aspect of disaster management at every level of American government. The magnitude and senselessness of the loss indicted American society for its callous disregard of social vulnerability. There is no such thing as a natural disaster. Understanding the interplay of environmental events with social conditions holds the key to the optimal application of legal tools for preventing, mitigating, and remedying natural tragedies - the grand social exercise called law among the ruins.
Hurricane Katrina, New Orleans, natural disasters, disaster management, environmental law
Abstract: This essay proposes a little housecleaning in the law of communications regulation. Red Lion Broadcasting Co. v. FCC, 395 U.S. 369 (1969), deserves to be transferred in its entirety from the realm of doctrine to that of history. Defenders of Red Lion and the discourse-based model of free speech jurisprudence symbolized by that decision seek to preserve one communicative niche where the public at large does absolutely nothing besides watch or listen. Appeals to civic republicanism and other lofty ideals notwithstanding, what Red Lion privileges above all else is sloth, the idea that there should be one form of mass communication that all citizens, without regard to wealth or power, can access solely by virtue of buying a receiving device and turning it on.
For four decades Congress and the FCC have imposed mandatory carriage obligations on cable and broadcast satellite operators for the benefit of conventional television stations. The emergence of intermediate constitutional scrutiny in those decisions has effectively confined Red Lion's deferential standard of review to structural regulation of the broadcast industry itself. Sustained resort to mandatory carriage schemes has reduced conventional broadcasting from a pervasive medium into the legal ward of byzantine regulatory systems designed to leverage the greater dominance of subscription-based platforms for delivering multichannel video programming.
Red Lion, broadcasting, FCC, Federal Communicaitons Commission, First Amendment, cable, DBS, technology
Abstract: The interplay between law and political economy dictates much of the wealth of nations. This article describes the clash between the two dominant models of economic development: fugitive and agrarian. In the agrarian model, growth is closely correlated with levels of investment in physical and human capital. Neither extraordinary risks nor returns are contemplated. By contrast, fugitive development stresses freedom of movement and unlimited risks and returns over security and self-sufficiency. Laws that assume an agrarian model of development are diverging from economic trends that favor fugitive paths to prosperity. This mismatch foretells rough times for the nation-state in its role as a manager of growth and redistributor of wealth. The conflict between agrarian law and fugitive economics has profound implications for taxation and regulation in the global commons.
wealth, economics, growth, agrarian, fugitive, agriculture, trade, property, redistribution, GATT, commerce clause, human capital, globalization
Abstract: Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969), decreed a medium-specific approach to first amendment controversies involving radio and broadcast television. Although the Supreme Court has never applied Red Lion's scarcity rationale to any medium besides broadcasting, the Court has frequently resolved free speech disputes by drawing analogies to broadcasting. Red Lion declared that courts should condition constitutional protection on the technological and economic characteristics of a regulated communications conduit. It specifically concluded that broadcasting, as a conduit, merited less rigorous first amendment review because of scarcity, the historic extent of governmental involvement in broadcasting, and the ongoing public interest in access to this intensely regulated medium. Most judicial and academic objections to Red Lion have addressed scarcity. This article takes aim instead at Red Lion's prescription of conduit-specific first amendment review, urging close scrutiny of rules that putatively regulate the economic aspects of communications technology but ultimately constrict the content of mass communications.
Red Lion Broadcasting, FCC, first amendment, broadcasting, telecommunications, scarcity
Abstract: The concept of “creamskimming” arises with regularity in the law of regulated industries. As a rhetorical weapon, the term “creamskimming” readily conjures images of the sort of putatively destructive competition that regulatory commissions are charged with patrolling. As a result, allegations of creamskimming have become a standard weapon in the legal arsenal of incumbent firms seeking to resist competitive entry. At an extreme, incumbent firms will characterize all forms of competitive entry as creamskimming. Sound regulatory responses to these allegations therefore depend on a proper understanding of the creamskimming concept.
This article proposes a definition of creamskimming that will help state and federal regulatory agencies distinguish genuine objections to proposed competitive entry from reflexive (and often improper) efforts to shield incumbent firms from competition. “Creamskimming” should be defined as “the practice of targeting only the customers that are the least expensive and most profitable for the incumbent firm to serve, thereby undercutting the incumbent firm’s ability to provide service throughout its service area.” Moreover, regulatory approaches to this practice should make clear that creamskimming can take place only where a competitive firm proposes to serve only a portion of an incumbent firm’s service area. In other words, when a competitive entrant proposes to serve an incumbent’s entire service area, creamskimming by definition cannot occur.
creamskimming, universal service, competition, regulation, regulated industries, telecommunications
Abstract: A specter is haunting agriculture, the specter of agroecological ideology. Extreme agroecological rhetoric transparently disguises a willingness to sacrifice environmental objectives whenever they conflict with the pecuniary interests of incumbent farmers. Agroecological ideology conceals an ugly truth about agriculture: farming is not an environmentally benign activity. In particular, the legal controversy over recombinant bovine somatotropin demonstrates how an agroecological response to new biotechnology can favor producer incomes over consumer welfare and environmental integrity. O brave moo world, that has such creatures in it!
farming, agriculture, agricultural law, recombinant bovine somatotropin, rbST, milk, dairy, biotechnology
Abstract: The Bluebook has transcended its role as a legal citation manual. As the citation for the flagship law reviews at Harvard, Yale, Columbia, and Penn, the Bluebook acts as the contract, combination, or conspiracy in restraint of trade that keeps its publishers solvent. As the condensed expression of the familial relationship between legal academia and student-edited law reviews, the Bluebook represents the prenuptial contract between the professors and the journals. Finally, as the unofficial Uniform Citation Code, the Bluebook is a legislative waste dump, a statutory release for the pent-up frustrations of partisan players in citation politics.
legal writing
Abstract: The regulation of firm size and structure, in agriculture and industry, assumes that certain forms of market structure and industrial organization are economically or socially pernicious. Large farms and large firms, according to this view, are reservoirs of economic and social evils. The law often targets these purported evils by restricting the formation and structure of firms. Structural regulation exploits the connection between the internal firm organization and overall market structure. Structural regulation disrupts the formation of firms so large that the size and scope of their activities favor sharp distinctions between labor, management, and capital. In agriculture, one of the most rigorously regulated and structured economic sectors in America, critics have decried the reemergence of feudalism. We shall borrow the epithet feudalism as a term embodying the worst fears urging the rigid structural regulation of free enterprise. This article first examines the regulation of feudalism in its native setting, the farm. Barriers to external investment and involvement in farming have not shielded agriculture from its natural tendency toward a feudal market structure. This article then studies the law's frontal assault on industrial feudalism: anti-takeover statutes. Like their agrarian counterparts, these laws have succeeded in destroying wealth without significantly affecting the terms by which firms organize themselves and shape economy at large. Whether manifested on the farm or in the firm, modern feudalism resists structural regulation. To advocates of free enterprise, feudalism unmodified is a battle cry, a celebration of the inequality that makes economic progress possible. But feudalism unmodified also describes the dismal condition of capitalism and its discontents. Those who would protect weaker competitors at the expense of competition lament the failure of structural regulation. No amount of legal resistance can preserve small farms and small firms. Feudalism endures, unmodified.
agriculture, regulation, feudalism
Abstract: Inflation touches many areas of law, and the law's response to inflation constitutes a policymaking opportunity in its own right. Legislators have long realized that the use of specific dollar figures or economic formulas can render statutes obsolete. Yet Congress's response to the most basic type of economic change hardly reflects careful policymaking. Federal statutes specifying one price index strongly favor the Bureau of Labor Statistics' Consumer Price Index (CPI) over the implicit price deflator (IPD) derived from the Bureau of Economic Affairs' computation of the gross domestic product. The IPD, however, boasts two methodological advantages that enable it to outperform the CPI in many circumstances. The IPD not only covers a deeper range of goods and services in the economy; it also eschews the fixed-weighted market-basket approach of the CPI. Both features offset the CPI's tendency to over report the rate of price change in the U.S. economy. Adopting the superior inflation index does present a daunting legal task. Because courts cannot countermand specific legislative references to one index or the other, and because neither index suits for all legislative needs, substitution of the IPD for the CPI (or vice versa) must almost invariably be achieved through piecemeal amendment. Like statutory interpretation ex post, legislative drafting ex ante demands both an expectation of imperfection and an enduring commitment to reinvention. A fuller version of this article, The Price of Macroeconomic Imprecision: How Should the Law Measure Inflation?, 54 Hastings L.J. 1375 (2003), is available for download at http://papers.ssrn.com/abstract=771244.
inflation, discount rates, purchasing power parity, consumer price index, implicit price deflator, gross domestic product, CPI, GDP
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