The real work of procedure is to guide conduct. It is sometimes said that the regulation of primary conduct is the work of the general and abstract norms of substantive law—clauses of the constitution, statutes, regulations, and common law rules of tort, property, and contract. But substance cannot effectively guide primary conduct without the aid of procedure. This is true because of three problems: (1) the problem of imperfect knowledge of law and fact, (2) the problem of incomplete specification of legal norms, and (3) the problem of partiality. The solution to these problems is particularization by a system of dispute resolution—in other words, a system of procedure. A theory of procedural justice is a theory about the fairness of the institutions that do the job of particularization.
In Choosing the Next Supreme Court Justice: An Empirical Ranking of Judicial Performance, Professors Stephen Choi and G. Mitu Gulati present an imaginative and well-timed challenge to the current judicial nominations culture, which insists in maintaining that nominees are selected for their excellence when they are actually chosen for their ideology.
In their provocative article, Professors Choi and Gulati make various claims advocating the selection of the next Supreme Court Justice on the basis of “merit.” The ingenious statistical tournament (the “Tournament”) they have designed purports to identify a set of judges-“a merit-worthy pool”‘ of candidates, as they put it-who should be given privileged consideration for future vacancies on the Court.
Professors Stephen Choi and G. Mitu Gulati are ambitious: they seek to quantify great legal minds. This interesting endeavor has both descriptive and normative components. Choi and Gulati hope not only to offer objective measures of what makes a judge great but also to affect the choices that presidents and senators make when appointing individuals to the U.S. Supreme Court.
The goal of this Article is to establish a new area of research exploring the connection between corporate governance and the well-being of children. Admittedly, at first glance, the relationship between the hard-nosed world of corporate law and the welfare of our nation’s most vulnerable citizens is far from obvious. We must step back to see the bigger picture – using the knowledge that we are at a historical transition from an industrial society to a knowledge-based economy. With this wide-angled lens, we can see connections among our most basic institutions of family, work, and corporation. Specifically, each institution is simultaneously in the midst of dramatic social and economic turmoil. Yet, these disruptions are not isolated events. Rather, crucial patterns of relationships emerge across time and among nations.
To explore how the transformations in family, work, and corporation are interwoven, we must start with the premise that human capital is the crucial factor for this nation’s success in the new economy. Even for low-level jobs, the so-called knowledge worker needs math and computer literacy to problem solve and cooperate in teams. The United States has experienced remarkable economic prosperity in the past decade, but when we look into the future, a different picture begins to surface. Compared to other advanced economies, the skill proficiency of our youngest generation of workers is lacking. Given this skills deficit, a wide variety of policymakers have begun to consider the topic of human capital formation. A general consensus exists that there is a danger that America’s children will be unable to meet the needs of tomorrow’s flexible labor markets.
You can spot a law review article a mile away. They’re the book-like bricks that no one reads and that have been famously likened to a “row of stiffs in a morgue.”
The lawfulness of sharing copyrighted works has always been contested, but never so hotly as it is today. The marriage of digital technology and information products creates remarkable opportunities for digital file-sharing, and new disputes asking when copyright law should give copyright owners control over sharing of copies of their works. This Article broadens the terms of the sharing debate by recognizing that file-sharing is just one member of a diverse set of sharing behaviors that occur in copyright protected markets. Books and recorded movies are shared by lending – books are lent by public libraries at no charge, while movies are rented for a fee. Owners of copyrighted works often share their copies by performing them for an audience. The audience might be children listening to a bedtime story, friends watching a recorded movie together, patrons at a bar listening to recorded music, and so forth. Finally, users share many sorts of works via private reproduction using computers, video and audio recorders, photocopiers, and scanners.
Copyright law specifies a mixed pattern of rights over sharing. Copyright owners have worked effectively to exert control over many forms of sharing, but powerful business groups have defended users’ sharing rights as a means of increasing their profit. The two sides have wrestled in Congress and the courts over the scope of various copyright provisions, especially the fair use doctrine, the main arena for conflict over sharing rights and the main focus of this Article.
This Article examines the propriety of having federal courts afford deference to state law interpretations reached by lower federal court judges. Two Supreme Court decisions from the 1990s seemed substantially to circumscribe such deference. But in fact subsequent Court cases continue to afford deference. Moreover, such deference can be normatively valuable. This Article argues in favor of the use of deference in appropriate circumstances, including situations where the district court and court of appeals agree on the proper interpretation of state law, and where answers to state law questions are obtained through an intrafederal certification regime.
The dispute between the United States and the European Union (“EU”) regarding the EU ban on meat imports treated with hormones raises the question: How should regulators respond to public fears that are disproportionate to the risks as evaluated by experts in risk assessment? If regulators cannot eliminate public fears through education, then there is some social benefit from regulations that reduce the feared risks and thereby reduce public anxiety and distortions in behavior flowing from that anxiety. These considerations imply that we cannot simply ignore public fears that technocrats would deem “irrational.” On the other hand, there is the danger that special interests may seek to generate consumer anxiety and lobby for regulations that serve their interests. I explore an approach that takes public fears seriously as social costs but also treats them as endogenous variables. I use this framework to evaluate risk regulations in terms of economic efficiency and suggest that the danger of inefficient regulation is most acute when domestic industries promote or sustain fears regarding imported products. From this perspective, the World Trade Organization ruling against the EU in the hormones dispute, based on the risk assessment requirements in the Agreement on the Application of Sanitary and Phytosanitary Measures, may represent a reasonable approach to guarding against the danger of regulatory protectionism, understood broadly to describe inefficient regulations that the importing country would not have adopted but for the foreign nationality of the producers disadvantaged and the domestic nationality of the producers favored by those regulations.
The traditional Fourth Amendment search-and-seizure doctrine was fine for an age of flintlocks, and maybe even for an age of automatic weapons. In the past, ordinary crime, even heinous crime, almost always had a limited impact. But one must wonder whether our traditional constitutional doctrine, without more, is up to the task of governing all searches and seizures in an age of weapons of mass destruction and potential terrorism. This Article explores this question and concludes that traditional doctrine falls short in an age of threats unprecedented in their potential for harm. We propose that, because of the potential harms posed by catastrophic threats, courts should come to recognize that a fresh look at the probable-cause standard is necessary. We contend that, if properly conducted, largescale searches undertaken to prevent horrific potential harms may be constitutionally sound even when the search of each particular location does not satisfy the traditional probable-cause requirement that such search have a “fair probability” or a “substantial chance” of yielding the object sought. As we discuss at more length below, established Fourth Amendment doctrine requires “individualized suspicion” for each person or place to be searched. We argue, however, that even where that element is lacking, the government’s search for a weapon of mass destruction4 may be permissible if the Supreme Court’s “special needs” exception to the probable-cause requirement is extended. Specifically, such a search should be permissible if (1) the search is justified by special needs that go beyond routine police functions; (2) the search program is reasonably designed to be as effective as is practical with the aim of preventing or minimizing harm to the public; (3) the procedure will give law enforcement constrained discretion in executing the search, and the search is not discriminatory in application; and (4) weighing the total circumstances, the balance between the governmental and societal need to search, weighed against the infringed-upon privacy of individuals, favors search.