Stillbirth is a confounding event, a reproductive
moment that at once combines birth and death. This Essay discusses the
complications of this simultaneity as a social experience and as a matter of
law. While traditionally, stillbirth didn’t count for much on either score,
this is no longer the case. Familiarity with fetal life through obstetric
ultrasound has transformed stillborn children into participating members of
their families long before birth, and this in turn has led to a novel demand on
law.

Dissatisfied with the issuance of a stillborn death
certificate, bereaved parents of stillborn babies have successfully lobbied
state legislatures nationwide to issue stillborn birth certificates under newly
enacted “Missing Angel Acts.” These Acts raise a perplexing set of questions. While
acknowledging the desire of grieving parents to have some form of recognition
for their children, it is important to think carefully about just what is being
certified in the name of the larger community. How has issuing birth
certificates to babies who never lived come to seem a reasonable rather than an
eccentric legislative gesture? And importantly, do stillborn birth certificates
have implications for other areas of law involving prenatal death, particularly
the regulation of abortion?

This Essay discusses the history, meaning, and
politics of stillborn birth certificates. Recognizing that Missing Angel Acts
may seem a compassionate and seemingly harmless use of law, I want to consider
a more complicated story. Law’s relationship to mourning practices in the difficult
circumstances of stillbirth raises important issues concerning the effective
authority of law, the use of legal fictions in modern identity documentation,
and the desirability of lines between private and public responses to death.

The American West is notorious for its water wars,
and California’s complex water allocation and governance challenges serve as a
bellwether for contemporary water governance across western states. Policy
makers and environmental advocates typically represent California’s water woes
as a regulatory problem-a failure to balance the needs of growing urban
populations with ecological preservation and agricultural irrigation. These
debates, however, often elide the issue of water deprivation, and they do not
adequately address the concerns of an important constituency: low-income, rural
communities.

This Comment argues that a focus on regulation
misses a fundamental feature of water inequality: the structure and design of local
water districts. Utilizing a case study of California’s Central Valley to
illustrate how these structural barriers operate, I argue that California’s
complex system of local water districts fractures governance, limits electoral
participation, and undermines the State’s stated environmental, equity, and
utilitarian water goals. I offer suggestions for alternative local water
district organization in order to address the constraints of California’s
current water governance regime.

Forty-five years since the U.S. Supreme Court first
recognized the right to a criminal jury trial as “fundamental to the American scheme
of justice,” jury trial rates (the prevalence of jury trials relative to bench
trials) in American criminal adjudication actually vary dramatically by state.
A sizable body of scholarship has generally explored the decrease in criminal
trials, but this “Vanishing Trial” literature has largely ignored the notable
state-by-state disparities in jury trial rates. After reviewing the historic
role the Framers expected the jury trial to play in criminal adjudication, this
Comment analyzes the existing data on jury trial rates and identifies
surprising disparities from one jurisdiction to the next. The Comment then
explores various state practices that may be sources of these variations, often
pushing the jury trial to the margins of criminal adjudication and
disadvantaging those accused of wrongdoing. The Comment concludes by
contrasting the Supreme Court’s recent jurisprudence celebrating the centrality
of the jury trial with the lived experiences of criminal defendants, and argues
for a more substantive understanding of the Sixth Amendment’s trial by jury guarantee.

The debate is characterized by a focus on whether
the system produces an optimal quantity of enforcement. This Article assesses
the centralization debate through a different lens, emphasizing differences in
the quality of enforcement, particularly the values that influence and are
expressed by enforcement. To frame the discussion, it draws a distinction
between two categories of enforcement: rule-enforcement and principle-enforcement.
Rule-enforcement is less costly and controversial than principle-enforcement
because specific rules tend to reflect the technical requirements of an
administrative regime while general principles can reflect a wider range of
values.

Enforcers differ in their approach in taking on the
cost and controversy of principle-enforcement. Industry enforcers are likely to
interpret principles narrowly based on industry values. Regulatory enforcers
such as the SEC may find it difficult to adequately enforce principles because
of the pressure of implementing consistent regulatory policy. Public-values
enforcers such as federal prosecutors and state attorneys general are willing
to enforce principles in light of social values but may overreach because of political
ambition. Entrepreneurial enforcers such as class action attorneys are most
willing to invest in principle-enforcement but also have a tendency to bring
questionable cases for profit.

The choice between a centralized and decentralized
enforcement system is fundamentally a choice between a one-dimensional and multidimensional
conception of the values relevant to securities enforcement. Proposals to
centralize securities enforcement are motivated by a desire to eliminate the
conflicts that can arise between enforcement approaches that reflect different
values. The cost of such centralization is that the advantages diverse
enforcers bring to the table will be eliminated. This Article concludes that a
decentralized system is best justified by recognizing the particular strengths
of different enforcers rather than focusing on whether an optimal amount of
enforcement is produced.

Too often, popular political power-whether it is in
the form of direct democracy or other more innovative forays in participatory
or deliberative democracy-presents itself principally as a counterweight to the
political power parties wield. Yet setting up “popular democracy” and “party
democracy” in opposition to one another in the American political landscape is
not only unnecessary but also pathological: this oppositional posture risks the
ossification of party democracy and keeps popular democrats insulated from the substantial
improvements the power of parties could bring to the polity. This Article,
accordingly, seeks to enrich both party democracy and popular democracy by
showing how each might draw strengths from the other, and how each needs the
other to function more effectively. A new literature in political theory
explores the central role of partisanship in democratic functioning, and we
will deploy that theory in service of some practical applications in institutional
design here. We have been involved-on the ground level-in two recent policy
conversations that really would have been improved with a complementary vision
of the parties and the people. We could have better exercises of party democracy
and popular democracy, if only we started to see how they might be brought into
pragmatic symbiosis.

This Article examines the astonishing array of
doctrines used to determine what constitutes marriage fraud. It begins by
locating the traditional nineteenth-century annulment-by-fraud doctrine within the
realm of contract fraud, observing that in the family law context fraudulent
marriages were voidable solely at the option of the injured party. The Article
then explains how, in the twentieth century, a massive expansion of public
benefits tied to marriage prompted new marriage fraud doctrines to develop in
various areas of the law, shifting the concept of the injured party from the
defrauded spouse to the public at large. It proposes a framework for
understanding these new doctrines by demonstrating that courts apply different
tests for finding fraud depending on the value of the benefit sought compared to
the cost to the individual of using marriage to obtain it. Furthermore, the
Article argues that marriage is an ineffective means for distributing public
benefits that serve specific objectives; in other words, marriage is being
asked to do too much work. As a possible response to this problem, the Article
concludes that lawmakers could disaggregate the components of marriage to which
they attach public benefits. This would improve the efficacy of public benefits
distribution without entirely dismantling the institution of marriage or jeopardizing
the stability that it may provide to society.

This Essay explores a question of superficial triviality:
when sports use instant replay technology to review on-field calls, what standard
of review should they employ? The conventional view is that on-field calls
should be entrenched against reversal such that, if there viewing official has
any doubt about the correctness of the initial call, he must let it stand even
if he thinks it very probably wrong. Indeed, in the wake of officiating
debacles at last summer’s FIFA World Cup, commentators proposed not only that
soccer employ instant replay, but also that it follow the NFL in directing
officials to overturn on-field calls only when “indisputable visual evidence” (IVE)
reveals that call to be mistaken. This Essay argues that common wisdom in favor
of IVE overlooks important considerations against entrenchment and likely rests
upon mistaken premises, and it offers several concrete proposals for reform.

Should the United States impose a
genetic definition of “family “on refugees seeking to reunite with their
families? This Comment chronicles the birth of DNA testing in the U.S. Refugee
Family Reunification (Priority Three, or P-3) Program. It explores the inception
of new rules that will require DNA testing for individuals processed as
Priority Three refugees. Drawing on historical uses of non-DNA forensic testing
in the U.S. immigration system and other areas of U.S. law, the Comment
analyzes whether DNA testing will work in this context. It asks whether it is
appropriate or even feasible to test family connections using DNA testing, a
process which necessarily implies that family members must be biologically
related to the refugee-applicant.

Debt collectors are increasingly
using internet and mobile technologies as part of the debt collection process.
While these technologies may provide conveniences for collectors and consumers alike,
they also create the potential for new forms of deception and raise novel
privacy concerns. Much of the problem lies in the failure to update the Fair
Debt Collection Practices Act (FDCPA). Despitet he dramatic transformation of
the debt collection industry over the last thirty years, the statute has
remained largely backward looking, even in the face of calls to modernize the
act from regulators, industry representatives, and consumer advocates.

Recently, this landscape has
undergone a fundamental change. Congress vested the newly created Consumer
Financial Protection Bureau (CFPB) with rulemaking authority over the FDCPA.
This marks an opportunity to address the pressing problems raised by debt collectors’
use of new and emerging technologies, and to provide guidance regarding what
protections are necessary in order to preserve consumer privacy and prevent
harassment. In some cases, the challenges raised by new technology can be
sufficiently resolved through the current FDCPA framework, while in other
areas, reform is sorely needed.

This Comment outlines the
challenges new technologies pose, analyzes the areas of tension that cannot be
resolved under the current FDCPA framework, and recommends three areas of reform.
First, the term “communication” should be redefined in order to applied to new
communication platforms that pose a threat to consumer privacy. Second, the
CFPB should reform the FDCPA to ensure that new communication technologies do
not become a one-way street, by requiring that communications made through new technologies
include necessary disclosures, an opt-out mechanism, and a dispute process that
consumers can use through the same technology that the debt collector used to
contact the consumer. And third, the CFPB should consider imposing an express
written consent requirement on the use of technologies that may cause consumers
financial harm.

Over the past two years U.S.
regulatory agencies have issued fourteen regulations that take into account the
effect of industrial activities and products on the global climate. The
regulatory activity so far has already set precedents on which future
regulation will rest. Yet despite the potentially momentous consequences, it
has received no comment in the law review literature. This Article examines the
record of these agencies and criticizes the methods they have used to calculate
the social cost of carbon emissions. We also develop a larger theme about the
relationship between cost-benefit analysis and politics. The best case for
cost-benefit analysis is that its recommendations are politically neutral in
the sense of drawing on widely shared intuitions about human well-being. But
cost-benefit analysis cannot cope with inherently political questions involving
contested normative issues. Policymakers will have to find alternative tools
when those questions predominate.

Judges are human and experience emotion when hearing cases, though the
standard account of judging long has denied that fact. In the post-realist era
it is possible to acknowledge that judges have emotional reactions to their
work, yet our legal culture continues to insist that a good judge firmly puts
those reactions aside. Thus, we expect judges to regulate their emotions,
either by preventing emotion’s emergence or by walling off its influence. But
judges are given precisely no direction as to how to engage in emotional
regulation.

This Article proposes a model for judicial emotion regulation that goes
beyond a blanket admonition to “put emotion aside.” While legal
discourse on judicial emotion has been stunted, scientific study of the
processes of emotion regulation has been robust. By bringing these literatures
together for the first time, the Article reveals that our legal culture does
nothing to promote intelligent judicial emotion regulation and much to
discourage it.

Federal jurisdiction-the “power” of the court-is seen as something
separate and unique, with a litany of special effects that define
jurisdictionality as the antipode of nonjurisdictionality. The resulting
conceptualization is that jurisdictionality and nonjurisdictionality occupy
mutually exclusive theoretical and doctrinal space. In a recent Article, I
refuted this rigid dichotomy of jurisdictionality and nonjurisdictionality by
explaining that nonjurisdictional rules can be “hybridized” with
any-or even all-of the attributes of jurisdictionality.

This Article drops the other shoe. Jurisdictional rules can be hybridized,
too, and in myriad forms. The result is a far more complex world than what the
simple-but fallacious-dichotomy of jurisdictionality and nonjurisdictionality
suggests.

On many Indian reservations throughout the country,
the federal government is the only sovereign empowered to prosecute serious felonies.
Consequently Native Americans are disproportionately exposed to lengthy federal
sentences. Because the federal government controls these cases, tribal
sovereigns lack the local control over criminal law and policy that states
enjoy.

Under the federal sentencing guidelines, each federal
crime has an offense level that can go up or down depending on the crime’s circumstances.
Combined with a defendant’s criminal history, the final level determines the
range of sentences recommended under the guidelines. I propose that tribes
alone decide offense levels for crimes committed in Indian country. This
proposal aims to (1) enhance tribal sovereignty over on-reservation violence
and thereby provide tribes with experience regulating felonies; (2) increase respect
among tribal governments and their members for federal criminal prosecutions;
and (3) decrease the racial sentencing disparity between Indians and
non-Indians.

As a society, we have been largely indifferent to
the prevalence of male rape victimization. In the prison context, we dismiss it
as par for the course, as “just deserts,” or worse yet, as a rarely stated but
widely known component of deterrence. We treat prisons as invisible zones, as
zones without law, as zones that need not concern us. Outside the prison
context, our response is no better. We tell ourselves male rape victimization
is a rarity, or perhaps something that only happens to gay men. In short, we
render male victim rape invisible, or at least un-articulable. This Article
renders male victim rape visible.

It has become almost universal practice for
countries to adopt formal constitutions. Little is known empirically, however,
about the evolution of this practice on a global scale. Are constitutions
unique and defining statements of national aspiration and identity? Or are they
standardized documents that vary only at the margins, in predictable and
patterned ways? Are constitutions becoming increasingly similar or dissimilar
over time, or is there no discernible overall pattern to their development?
Until very recently, scholars have lacked even basic empirical data on the
content of the world’s constitutions, much less an understanding of whether
there are global patterns to that content.

The Los Angeles County Men’s Jail segregates gay
and transgender inmates and says that it does so to protect them from sexual
assault. But not all gay and transgender inmates qualify for admission to the
K6G unit. Transgender inmates must appear transgender to staff that inspect
them. Gay men must identify as gay in a public space and then satisfactorily answer
a series of cultural questions designed to determine whether they really are
gay. This policy creates harms for those who are excluded, including vulnerable
heterosexual and bisexual men, men who have sex with men but do not embrace gay
identity, and gay-identified men who do not mimic white, affluent gay culture. Further,
the policy harms those who are included in that it stereotypes them as inherent
victims, exposes them to a heightened risk of HIV transmission, and disrupts
relationships that cut across gender identity and sexual orientation. Thus,
this Article casts doubt on the claim that the policy is intended to and
actually protects gay and transgender inmates. Moreover, it interrogates the
Jail’s failure to protect many other categories of inmates who have been shown
to be vulnerable to sexual assault in jails, including those who are young,
first-time offenders and those with disabilities. The Jail’s policy ultimately reflects
and reinforces problematic social assumptions about masculinity, including the
notion that gay men are not “real men.”

Read Professor Emen’s response in the Circuit here. 

Padilla v. Kentucky was a watershed in the U.S. Supreme Court’s
turn to regulating plea bargaining. For decades, the Court had focused on jury
trials as the central subject of criminal procedure, with only modest and
ineffective procedural regulation of guilty pleas. This older view treated
trials as the norm, was indifferent to sentencing, trusted judges and juries to
protect innocence, and drew clean lines excluding civil proceedings and
collateral consequences from its purview. In United States v. Ruiz in 2002, the Court began to focus on the
realities of the plea process itself, but did so only halfway. Not until Padilla
last year did the Court regulate plea
bargaining’s substantive calculus, its attendant sentencing decisions, the
lawyers who run it, and related collateral civil consequences. Padilla marks the eclipse of Justice Scalia’s
formalist originalism, the parting triumph of Justice Stevens’s common-law
incrementalism, and the rise of the two realistic ex- prosecutors on the Court,
Justices Alito and Sotomayor. To complete Padilla’s unfinished business, the Court and legislatures should look to
consumer protection law to regulate at least the process if not the substance
of plea bargaining.

Federal
Rule of Civil Procedure (“FRCP”) 24(a)(2) permits third parties whose interests
are not adequately represented by existing parties to intervene in ongoing
litigation to protect those interests. This Comment considers whether
intervention can and should be used as a tool for nonparty racial minorities in
the fight for social justice. Ultimately, it posits that in light of the Civil
Rights Act of 1991 and Ricci v. DeStefano,
minority intervention is imperative- not only to give voice to minority interests
and to influence the outcome of “reverse discrimination” litigation, but also
to avoid forfeiture of related claims in future suits.

Tent
cities have reemerged in the public view as a result of economic depression and
the housing crisis in recent years. Despite the growing number of tent cities
and their homeless residents, these encampments have received almost no
academic attention or analysis. This Comment seeks to open the dialogue on tent
cities in the context of informal housing law and policy in the United States.
In doing so, it provides background on homelessness, informal housing, and tent
cities, explores the benefits derived from tent cities both for encampment
residents and for local government actors, and also considers the ethical and
legal constraints associated with homeless encampments. The Comment then
explores innovative government responses that have allowed tent cities to
survive and sometimes thrive. Finally, the Comment proposes several ways in
which tent cities can be acknowledged, addressed and improved. The complicated
social and political context in which tent cities exist, and the substandard
conditions that many tent city residents endure, underscore the immediacy of
the issue, and the importance of addressing encampments in a coherent,
cohesive, and compassionate manner.

Scholars
and courts recognize that the federal government uses its broad spending power
to enlist states in achieving federal goals, thereby expanding the federal
government’s reach beyond the areas enumerated for it in the Constitution.
Previously underappreciated, however, is that the federal government can
achieve similar ends-it can regulate the states and private parties-through its
potentially equally broad taxing power. This Article draws on the spending
power literature to illuminate the analogous federalism concerns raised by
expansive use of the taxing power. For example, by crowding out state
regulation of similar policy areas, federal tax regulation may limit policy
diversity and hinder regulatory competition both among the states and between the
states and the federal government. But this Article also identifies important
differences between taxation and grants that suggest that federal tax
regulation represents less of a federalism threat than do conditional grants to
the states. For example, because federal tax incentives neither contractually
bind states to follow federal policy nor expend state legislative and
administrative resources in enacting and enforcing federal policy, states may
remain freer under tax incentives than grants to enact concurrent or contrary
policies.

The Justices of the U.S.
Supreme Court have frequently insisted that “facial challenges” to
the validity of statutes are and ought to be rare. Based partly on an empirical
survey of all cases decided by the Court during six selected Terms, this
Article reveals that assumption to be empirically false and normatively
mistaken. Error on this point reflects broader confusions and
misunderstandings. For example, it is not true that only a few especially
stringent constitutional tests frame facial challenges. Even the rational basis
test sometimes yields the conclusion that statutes are invalid in toto.
The conventional wisdom also errs in positing that the Supreme Court can cure a
statute’s facial defects merely by invoking a general “presumption of
severability” under which, in a future case, any of a statute’s invalid
applications can be separated from valid ones.

Besides revising the
conventional wisdom about facial challenges, this Article locates the root of
misunderstanding in the rhetoric of a relatively small number of much-cited
cases. It also begins the reconstructive task of explaining when facial challenges
do and do not succeed. That explanation has three parts. First, there is a
crucial linkage between rulings of facial invalidity and the breadth of the
reasons that the Supreme Court gives in upholding constitutional challenges.
Second, the Court is often inattentive to severability issues, and its practice
must be understood accordingly. Although this Article advances important
rationalizing generalizations, it explains why the Court’s approach to
severability cannot be captured in rigid rules. Third, many Supreme Court
decisions rejecting facial challenges are best understood as finding facial
challenges to be unripe, rather than categorically unavailable.

This Note examines the history of courts’ treatment of these so-called “John Doe” DNA arrest warrants, their constitutionality, and their statutory validity in California. It then examines the California Supreme Court’s decision in People v. Robinson, ultimately arguing that the decision—while correct—overreaches with respect to the exclusionary rule and the statute of limitations.

This Comment examines a new approach based on an age-old solution-privateers. The U.S. Constitution expressly provides that Congress, by issuing letters of marque, can enable private entities to conduct maritime warfare on behalf of the nation. Successive generations of American governments have employed letters of marque to combat maritime threats efficiently. Once more, the commissioning of privateers might prove to be an appropriate tool in the battle to dismantle pirate networks. Given the dispersed nature of the problem and relatively limited capabilities of the pirates, this Comment argues that privateers may provide a more cost effective and sustainable approach than deploying naval forces. It suggests how a new regime for deploying  privateers against Somali pirates could and should be established consistent with international law under either international or domestic frameworks.

It has only been a decade, but the mood in America since the new
millennium has largely been one of anger and disenchantment. This decade
began with a disputed presidential election, followed by 9/11, two
wars, a bad economy, and numerous natural disasters that have captured
the public imagination. Pundits from the right and left use television,
radio, the Internet, and cell phones to rant about all that is wrong
with the politicians in office. Even the brief moment of hopefulness,
unity, and call for nonpartisanship in the wake of Barack Obama’s 2008
election quickly descended into a bitter partisan war of attrition. His
historic legislative victory on health care reform was marked by intense
ideological rancor and partisan line drawing, in contrast with the
overwhelming bipartisan majorities that passed similarly historic social
welfare legislation in the 1960s. Since then, Democrats and Republicans
have spent much of their time in separate trenches exchanging threats
and barbs, and little time deliberating and compromising on policy.

Insistence on judicial dispassion is a cultural script of
unusual longevity and potency. But not only is the script wrong as a
matter of human nature—emotion does not, in fact, invariably tend toward
sloppiness, bias, and irrationality—it is also not quite so monolithic
as it appears. Legal theorists, and judges themselves, sometimes have
asserted that judicial emotion is inevitable and, perhaps, to be
welcomed. But these dissents have neither eroded the script’s power nor
blossomed into a robust theory of how emotion might coexist with, or
even contribute to, judicial decision making. Close examination of this
hidden intellectual history reveals why. Scholars and judges
consistently have stumbled over foundational questions of emotion’s
nature and value. Fortunately, the history reveals cures as well as
causes. We can move forward by way of disciplined, sustained recourse to
a newly vibrant emotional epistemology, a project that will create a
distinct space for the story of judicial emotion.

This Article
explores the causes of this polarization. Are the causes relatively
contingent and short-term ones, so that it is possible to envision this
structure of extreme partisan polarization changing, perhaps if certain
institutional changes were made in the way American democracy and
elections are designed? Or are the causes deep-rooted and structural
ones, so that the appropriate conclusion is that this extreme partisan
polarization is likely to be the ongoing structure of American politics
and democracy for the coming years, regardless of any efforts that might
be made to diminish this polarization? In particular, the article
explores three potential causes of this polarization, which I label
Persons, History, and Institutions.

Anupam Chander introduces “Googling Freedom”:

Thus, similar privacy concerns
are expressed in decisions of the Reichsgericht, the German Supreme
Court, in the 1920s. In those cases, irrespective of whether the
plaintiff was the President of the German Republic, its Defense
Minister, the Count Friedrich von Zeppelin (father of the first large
dirigible airship), or a less prominent person, the Court focused, as in
the United States, on the right ―to be let alone.

The apple of friendship,
the rose of scholarship,
yet life’s thorns too:

Neoplasm, oncology,
errant cells—
no matter though.

The field
receives your labor
and is grateful.

Dignity, respect;
you reap,
you sow.

Seeds for justice
find a caring,
careful hand.

Prairie wind,
pacific shore—
a certain fragrance:

A benediction
forevermore.

Finally, in Part III, this Article applies lessons from the Last
Indian Raid to a contemporary Indian law issue—the boundaries of tribal
control over Indians who are not members of the governing tribe. Telling
thicker stories, whether about the Last Indian Raid or this particular
Indian law issue, allows us to peek behind the arid judicial
formulations of Indian law to see the more complicated and often
troubling reality about the life of Indian law. That, at least, is one
of the lessons that Phil tried to teach through his scholarship, and it
guides this inquiry as it has many others.

Part II discusses several different theories of
constitutionalism, each reflected in the briefs filed by the primary
advocates in the Proposition 8 Case. The supporters of traditional
marriage, in their brief, relied on a descriptive constitutionalism that
owes much to Aristotle, updated by American theories of popular
sovereignty. The state took a different route, invoking a rights-based
constitutionalism that can be traced back to John Locke. Finally, the
supporters of same-sex marriage relied on the
representation-reinforcement variation on rights-based theory developed
by Dean Ely. Is the constitution best understood as a description of the
life and soul of the polity? A statement of inalienable rights upon
which the social contract is grounded? A guarantee of the democratic
process?

A major theme of Professor Frickey’s work, explored in Part III,
has been practical reasoning—a pragmatic approach to constitutionalism
inspired by Jeremy Bentham and William James. On explosive issues such
as gay marriage, the pragmatic judge is interested in the future costs
and benefits of proposed regime changes, is willing to experiment in
order to create more useful information, is reluctant to close off
public debate about a contentious issue, and is ultimately deferential
to social norms and popular attitudes. Professor Frickey has translated
this philosophy into useful doctrine that diplomatically mediates the
borderline between the stable, slow-to-change polity of Aristotle and
the dynamic aspirations of Locke and Ely. A Frickeyan analysis would
support the California Supreme Court’s three important moves: (1) the
Marriage Case usefully enforced Lockean rights under constitutional
conditions where popular response was possible, (2) the Proposition 8
Case deferred to the popular reaffirmation of the Aristotelian status
quo, but, (3) at the same time, gave it an Elysian nudge by construing
Proposition 8 not to invalidate the several thousand same-sex marriages
entered between June 16 and November 8, 2008.

The Essay then expands upon Frickey’s concerns by presenting two
sets of observations that focus on how the canons differ from
legislative history and agency guidance. Based on these observations,
the Essay suggests that the canons should be subordinated to
interpretive resources produced by the institutions of Congress and the
executive.

Professor Frickey intended the following essay to be the prologue
to the book he ultimately chose not to write, despite the urgings of
those closest to him. He had concluded that his primary message was
gratitude—too small a topic, he said, to sustain an entire book.
Besides, he was fully occupied with living in the present: appointments,
work, family, friends, good books, baseball, and other simple pleasures
became more enticing than a major writing project. Though he did not
draft the prologue as a free standing essay, his coauthor and colleague
Bill Eskridge pressed for its inclusion in the issue of the California Law Review (CLR) commemorating the Frickey Festschrift. He would have approved.
And had he been able, he would have thanked CLR for allowing him to
express his gratitude one last time, to the network of people who
supported him through his final illness.

It is important to note two aspects of Frickey‘s assessment.
First, judicial craft and advancing societal goals receive equal
billing. Second, although Frickey admitted that these goals may be in
“great tension,” he did not seek to dissolve the tension by providing
any formula for judicial decision making. As we will see, a notable
feature of Frickey‘s scholarship was his willingness to live with—and
attempt to mediate—fundamental tensions without entertaining the
illusion that they can be resolved once and for all.

The
2008 election of Barack Obama to the United States presidency is racially
momentous. Few would gainsay that the elevation of an African American to the
most powerful and most public position in our national life signals a
remarkable step away from race slavery. But what exactly does Obama’s elevation
portend for race in America? This Essay uses the tremendous racial disparities
in the American crime control system to assess race and racism as key features
of contemporary society. The Essay begins by considering a compelling thesis
that racialized mass incarceration stems from backlash to the civil rights
movement. If true, this raises the possibility that Obama’s election, potentially
marking the end of backlash politics, also represents a likely turning point in
the war on crime. The Essay then reconsiders mass imprisonment from the
perspective of “racial stratification,” a structural theory that emphasizes the
simultaneous formation of racial categories and the misallocation of resources
between races. A stratification approach leaves one less sanguine about rapid
change in American race relations, though without disparaging either the
historic nature of Obama’s inauguration or the possibility of incremental
improvements in racial justice. Reflecting the continued need to push for
positive racial change, the Essay concludes by arguing morally and politically
for a renewed focus on racism, in particular on “post-racial racism.”

Forty-nine of the U.S.
states have balanced budget requirements, and every state acts as though bound
by such constraints.  These constraints
create fiscal volatility – the states must either cut spending or raise taxes
during economic downturns, while doing the opposite during upturns.  This paper discusses how states should cope
with fiscal volatility on both the levels of ordinary politics and of
institutional-design policy.  On the
level of ordinary politics, the paper applies principles of risk allocation
theory to conclude that states should primarily adjust the rates of broad-based
taxes as their economies cycle, rather than fluctuating public spending.  States should raise their tax rates during
economic downturns and lower them during periods of growth.  On the level of institutional-design policy,
the key question is how we define terms like “tax cuts” and “tax hikes.”  By adopting a new baseline for defining these
terms, states can increase the likelihood of using tax rate adjustments to cope
with fiscal volatility rather than (more harmful) spending fluctuations. 

Rapid advances in the statistical
measurement of judicial behavior have provided concise, meaningful, and
intuitive summaries of differences between judges based on votes.  Yet such scores remain poorly understood,
widely misinterpreted, and commonly misused.  We provide a guide for how to interpret such measures, clarify major
misconceptions, and argue that extant scores are merely a special case of a
general model-based measurement approach to studying judicial behavior.  When
applied beyond aggregate merits votes, such measurement approaches empower the
meaningful examination, data collection, and incorporation of legal
doctrine.  We demonstrate how such
measures – when augmented with jurisprudentially meaningful data – facilitate
the study of substantive questions beyond the hackneyed “law vs. policy”
debate, with case studies of the constitutional revolution of 1937, the
dimensionality of the Supreme Court, the historical origins of the standing
doctrine, statutory interpretation, and backlash.

In recent work, various scholars
have challenged retributive justice theorists to pay more attention to the
subjective experience of punishment, specifically how punishment affects the
experiences and well-being of offenders.  The claim developed by these “subjectivists” is that because people’s
experiences with pain and suffering differ, both inter-temporally and inter-subjectively,
their punishments will accordingly have to be tailored to individual circumstances
as well. 

Our response is that this set of
claims is either true, but of somewhat trivial significance, or nontrivial, but
unsound. We don’t doubt the possibility that different people will react
differently to the same infliction of punishment.  It seems foolish to deny that that they will
(although such claims can be exaggerated).  What we deny, in the main, is that this variance in the experience of
punishment is critically relevant to the shape and justification of retributive
punishment.

Professor Nussbaum‘s tentative proposal raises a number of intriguing issues. First, is it actually possible for a state to “back out of the expressive domain altogether?” Second, does the Constitution impose any constraints on a state‘s elimination of civil marriage?

The keys to the kingdom of the married might have been held only by private citizens—religious bodies and their leaders, families, other parts of civil society. So it has been in many societies throughout history. In the United States, however, as in most modern nations, government currently holds those keys. Even if people have been married by their church or religious group, they are not married in the sense that really counts for social and political purposes unless they have been granted a marriage license by the state. Unlike private actors, however, the state doesn‘t have complete freedom to decide who may and may not marry. The state‘s involvement raises fundamental issues about equality of political and civic standing.

In
essence, this Comment is about strategy: what forum should reparations
movements choose to optimize their chances of success? While
reparations movements have largely defined themselves through
aspirational goals rather than specific definitions of reparations or
strategies for achieving redress,21 some scholars suggest that
reparations movements are increasingly achieving concrete results. As
Professor Ogletree puts it, ―[t]he issues are clear, the venues are
identified, and the time is now. My hope is that this Comment might
help those who seek redress to evaluate the available options. 

I assert that the DSHEA promotes deceptive labeling practices. I
also
suggest that the current regulatory regime is ineffective in assessing
health risks posed by dietary supplements to the general public. I
propose a way to amend the statute, by implementing a testing regime to
better ensure both the safety and efficacy of supplements (comparable
to, but distinguishable from and not nearly as stringent as the testing
regime governing the distribution of pharmaceutical drugs).
Furthermore, the paper advocates alleviating the burden the DSHEA
imposes on the FDA in banning potentially dangerous supplements, by
requiring courts to defer to FDA findings that a supplement is harmful
(under the DSHEA, the FDA bears the burden of proof in showing that a
supplement poses an “unreasonable or significant risk of harm” before
removing it from the market; moreover, courts must apply de novo review
to questions of law and fact in determining whether the FDA is
justified in prohibiting the sale of a supplement). Additionally, I
articulate a litigation strategy (based on California statutory law)
that might incentivize enactment of an amendment by Congress.
Alternative medicine implicates many controversial issues. The public’s
obsession with dietary supplements, despite the inadequacy of evidence
demonstrating their benefits, is rather disturbing. I feel the
government’s lack of regulation over this industry should be addressed
(especially in light of the deaths linked to the herbal supplement
ephedra, and the recent recall of the weigh-loss supplement Hydroxycut).

Yet international securities regulation is poorly understood.
Securities scholars traditionally view the SEC as a global regulatory
monopolist due to the size of US stock exchanges. But they overlook the
rise of foreign capital markets and the diminished influence of the
SEC. International law scholars view international securities
regulation as involving what game theoreticians would call an
“assurance” game where information sharing through informal networks of
regulators facilitates swift agreement on standards. But they ignore
the asymmetric costs of adopting international standards and thus
underestimate the obstacles to convergence.

This Article overcomes these limitations and offers a fuller
theoretical account of international securities regulation. It argues
that due to increased global competition for securities transactions,
coordination among securities regulators often comprises a “battle of
the sexes” game where regulators are not necessarily incentivized to
adopt the other’s regime. It also shows how the SEC, cognizant of this
development, is forming club-like alliances that offer foreign
regulators special rewards, like preferential market access, for
adopting its policy preferences. The Article then assesses the
effectiveness of this approach and concludes that clubs have better
prospects of success in enforcement cooperation than in substantive
areas of securities law.

These striking numbers are the result not of a flood of immigrants
entering the United States, but of a set of zero tolerance immigration
enforcement programs along the border. The Department of Homeland
Security (DHS) introduced the first of these programs, Operation
Streamline, in Del Rio, Texas, in 2005, and has implemented similar
programs in five more border sectors since then. Though zero tolerance
programs take slightly different forms in the various jurisdictions
where they exist, they share the same mandate: the criminal prosecution
of all migrants caught attempting to enter the United States in
designated border areas. And though they are known by different names,
the programs are generally referred to in the aggregate as “Operation
Streamline.”

Operation Streamline has been lauded by its designers but criticized
by many others, including judges, prosecutors, and border enforcement
officials. This paper contextualizes Streamline among other immigration
enforcement programs and explores some of the constitutional and policy
issues that have made the program so contentious.

The nature of rights—whether moral, legal, natural, or otherwise—has
a way of leaving everyone confused. On one thing, however, people seem
to agree: rights have a unitary nature. If a right is an ideal, a
statement of what ought to be, then the way in which it is actually
implemented is irrelevant to its definition. If, on the other hand, a
right is understood in more positivist terms as ―nothing but a
prediction of how certain institutions will react if a particular
person acts in a particular way,1 then the manner in which we talk
about a right is only relevant to the extent that our words correlate
with our deeds. 

The reason there is so much confusion over
rights is because everyone seems to misunderstand their fundamental
composition. Just as human beings have two essential aspects, a
physical body and an incorporeal soul, rights exist in two dimensions
simultaneously, not one. The way we talk about a right and the way we
put it into actual practice are flip sides of the same coin. It is
these twin elements of rhetoric and practice that define a right, and
neither one is ancillary to or derivative of the other.

For professors, practitioners, students, and even other judges,
Posner’s lure may seem irresistible — after all, who wouldn’t like to
know how judges think? Yet the book does not match its promise. Posner
offers no descriptive anecdotes about his colleagues or himself, and he
proffers only meager evidence about judges’ behavior in the aggregate.
Instead, Posner’s arguments are conceptual or theoretical, and thus the
book describes primarily “how Posner thinks” and “how Posner thinks
judges should think.”

This Review criticizes several of Posner’s substantive points, but
my main argument is that his book is methodologically incomplete. Just
like the theorists he condemns, Posner discounts judicial history as a
determinant of judicial role. Judicial behavior is heavily influenced
by historical traditions, as is law itself. By neglecting the
foundational links between history and judicial conduct, Posner cannot
answer the questions posed by his book’s title, and this offers a
cautionary tale for the rest of us who study judicial behavior.

This Comment details the interaction of immigration status with two
of the Hague Convention’s defenses to the return of a child, the
Article 13(b) grave-risk defense and the Article 12 “well-settled”
defense. Where appropriate, I assess this relationship through the lens
of the parent escaping domestic violence, given the prevalence and
severity of the problem. I argue that current U.S. Hague Convention
jurisprudence takes immigration status into account when it should not
– in the consideration of the “well-settled” defense – and fails to
weigh immigration status when it should – when an asylum application is
relevant to the assessment of the grave risk defense. In order to
comport with the object and purpose of the Hague Convention, which is
to “protect children internationally from the harmful effects of their
wrongful removal,” and with other international law norms, U.S. courts
must weigh the status of asylum applicants in grave risk
determinations, while they should not deem immigration status a
dispositive factor in the “well-settled” inquiry.

The legal issues that prevent states from effectively dealing with pirates are precisely the same as those that have plagued responses to international terrorism. The “War on Piracy” and the “War on Terror” both raise questions about the legal status of conflicts between traditional states and diffuse multinational networks. Pirates, like terrorists, fall in the gray zone between military combatants and civilians. But the similarities between the legal problems of piracy in Somalia and those of the battle against international terrorism do not end there. Lack of clarity about pirates’ prisoner of war status, the use of prolonged detention, rendition to countries with poor human rights records, claims of abuse by the detainees, accidental killings of innocent civilians, the difficulty of proving cases arising from the field of active military operations in civilian court, and the legality of “targeted killings” of suspected wrongdoers are just a few of the issues that have plagued both legal efforts against international terrorists and against piracy in the just first few months of the current Somali campaign.

The legal response to terrorism has been among the most contentious public issues in recent years. It is widely asserted that trying foreign terrorists in civilian courts is a workable response. However, the failure of this same strategy in the case of piracy—indeed, the refusal of the very nations that promote such an approach for terrorism to even attempt it with piracy—suggests that the civilian approach to terrorism will be extraordinarily challenging. For a variety of reasons, piracy would be far easier to deal with than terrorism. Thus, the legal impediments to dealing with piracy serve as an ideal case study for the future of terrorism prosecutions.

Two years later, in an effort to repair the damage, the eighteen state and federal agencies12 that regulate the Bay-Delta formed CALFED—a consortium charged with creating a collaborative thirty-year plan for the troubled estuary. In 2000, CALFED issued that plan: a high-level blueprint for restoring the ecological health of the Bay-Delta and improving its water management. Agricultural interests from the northern Central Valley soon challenged the plan under the California Environmental Quality Act (“CEQA”), which provides those who oppose projects for environmental or other reasons with legal means to attack them. The resulting litigation dragged on for eight years and culminated in In re Bay-Delta Programmatic Environmental Impact Report Consolidated Proceedings (“Bay-Delta”). The unanimous California Supreme Court decision upheld the CALFED plan and, in doing so, added certainty to California’s increasingly uncertain water planning process.

Chief Justice George’s opinion is striking in how thoroughly and carefully it explains the constitutional basis for marriage equality. Yet its reasoning and rhetoric played virtually no role in the public debate over Proposition 8. If it had been far shorter and much more poorly reasoned and written, the outcome would surely have been the same on election day.

The interesting and unexplored question is whether the opinion could have done anything to sway public opinion or to change Proposition 8’s fate. But is this even a fair question to ask? Should judicial opinions seek to persuade the public? To answer that question requires thinking about whom judges actually intend to address and whom they should address. 

Chief Justice George’s opinion is striking in
how thoroughly and carefully it explains the constitutional basis for marriage
equality. Yet its reasoning and rhetoric played virtually no role in the public
debate over Proposition 8. If it had been far shorter and much more poorly
reasoned and written, the outcome would surely have been the same on election
day.

The interesting and unexplored question is
whether the opinion could have done anything to sway public opinion or to
change Proposition 8’s fate. But is this even a fair question to ask? Should
judicial opinions seek to persuade the public? To answer that question requires
thinking about whom judges actually intend to address and whom they should address. 

Despite the widespread impact of the MVRA on victims, offenders, and
the criminal justice system, the practical effects of the Act have been
scarcely evaluated. This Comment addresses that deficiency in the
discussion of the MVRA through an analysis of its practical efficacy.
To that end, the Comment looks at the MVRA’s impact on victim
compensation, victim satisfaction, and offender rehabilitation. Through
statistical, social, and legal analysis of these topics, the Comment
reveals that the MVRA likely leaves both victims and offenders worse
off than they were under the statutory scheme that preceded the Act.
The paper concludes by making a series of policy recommendations to
ameliorate the current state of federal restitution, offering both
short-term fixes and long-term solutions.

Despite the widespread impact of the MVRA on victims, offenders, and
the criminal justice system, the practical effects of the Act have been
scarcely evaluated. This Comment addresses that deficiency in the
discussion of the MVRA through an analysis of its practical efficacy.
To that end, the Comment looks at the MVRA’s impact on victim
compensation, victim satisfaction, and offender rehabilitation. Through
statistical, social, and legal analysis of these topics, the Comment
reveals that the MVRA likely leaves both victims and offenders worse
off than they were under the statutory scheme that preceded the Act.
The paper concludes by making a series of policy recommendations to
ameliorate the current state of federal restitution, offering both
short-term fixes and long-term solutions.