Category: Articles

Resuscitating Deference to Lower Federal Court Judges Interpretations of State Law – Article by Jonathan Remy Nash

From Volume 77, Number 5 (July 2004)
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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.

 

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Risk Regulation, Endogenous Public Concerns, and the Hormones Dispute: Nothing to Fear but Fear Itself? – Article by Howard F. Chang

From Volume 77, Number 4 (May 2004)
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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.

 

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Catastrophic Threats and the Fourth Amendment – Article by The Honorable Ronald M. Gould and Simon Stern

From Volume 77, Number 4 (May 2004)
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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.

 

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Equality Without Tiers – Article by Suzanne B. Goldberg

From Volume 77, Number 3 (March 2004)
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The immediate impact of Grutter v. Bollinger and Gratz v. Bollinger is nothing short of momentous. Not only do the Supreme Court’s most recent affirmative action decisions settle the deeply contested question of whether race may be considered in higher education admissions, but they also, more broadly, envision permissible and impermissible uses of racial classifications in that context, and surface new, challenging questions about the official use of affirmative action.

Yet Grutter and Gratz are also momentous for what they tell us about the long-term struggle over the structure of equal protection doctrine. This struggle, which has been under way for decades, will affect the future of equality analyses far beyond affirmative action.

Specifically, two interrelated developments have shaken the foundations of the Court’s three-tiered equal protection framework. First, as evidenced in Grutter and Gratz, the categorical application of rigorous review to suspect classifications has become its own battleground, complete with disputes over whether context should affect the strictness of strict scrutiny. Second, at the other end of the equal protection spectrum, the Court’s rational basis jurisprudence wavers between its typical deference to government decisionmaking and the occasional insistence on meaningful review, without a unifying theory for meshing the two seemingly distinct approaches.

 

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Law and the Shaping of American Foreign Policy: The Twenty Years’ Crisis – Article by Jonathan Zasloff

From Volume 77, Number 3 (March 2004)
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International law is back. Once derided as pretentious and obscure, the field has blossomed over the last decade into a cutting-edge academic discipline. Yet the explosion of international law is of far more than academic interest. Major national and international policymakers are busily creating and using international institutions in an attempt to remake the world: the international criminal court, a World Trade Organization appellate court with real teeth, war crimes tribunals, weapons inspectors under international legal mandates, and the list goes on. Advocates in violent conflicts appeal to “international legality” as a way of gaining strength. In the wake of September 11th, several observers have suggested that these kinds of institutions could play a critical role in the war on terrorism and represent a better way than military means to forestall chaos and avoid a clash of civilizations.

 

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Law’s Signal: A Cueing Theory of Law in Market Transition – Article by Robert B. Ahdieh

From Volume 77, Number 2 (January 2004)
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Securities markets are commonly assumed to spring forth at the intersection of an adequate supply of, and a healthy demand for, investment capital. In recent years, however, seemingly failed market transitions—the failure of new markets to emerge and of existing markets to evolve—have called this assumption into question. From the developed economies of Germany and Japan to the developing countries of central and eastern Europe, securities markets have exhibited some inability to take root. The failure of U.S. securities markets, and particularly the New York Stock Exchange, to make greater use of computerized trading, communications, and processing technologies, meanwhile, seems to suggest some market resistance to technological modernization. In light of this pattern, one must wonder: How are strong markets created and maintained, and what might be law’s role in this process?

This Article attempts to articulate a model for understanding the needs of efficient market transition and the resulting role of law in that process. Specifically, it suggests a “cueing” function for law in market transition. Grounded in largely ignored lessons of game theory and in the microeconomic analysis of so-called network effects, cueing theory identifies the coordination of market participants’ expectations as law’s central role in market transition. Building on recent legal literature on private regulation, social norms, and the expressive function of law, this theory suggests that in securities market transition—whether it be market creation in central and eastern Europe or market restructuring in the United States—law primarily serves to convene, encourage, inform, and facilitate.

A cueing role for law constitutes an important extension of traditional conceptions of what law does, particularly in securities regulation, but in other areas as well. Regulatory cues are neither coercive nor outcome determinative and involve a close intertwining of public and private regulation. The exceptional character of law in this context, and the recent growth in areas where regulatory cues might have fruitful application, may explain why such a role has not previously been analyzed. Yet in securities markets and other industries exhibiting network economies—from electricity transmission and interstate transportation to telecommunications and the Internet—a cueing function for law may be central to efficient transition. It may explain much of why “law matters” in the modern economy.

 

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Title VII’s Midlife Crisis: The Case of Constructive Discharge – Article by Martha Chamallas

From Volume 77, Number 2 (January 2004)
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Understanding Title VII law has never been easy. From the beginning, there have been sharp disputes about the meaning of “discrimination” under the Act and the degree to which employers should be held strictly accountable for discriminatory actions of supervisors and employees. Early debates tended to pit those who envisioned the Act as a results-oriented measure aimed at ending racial and gender hierarchies in the workplace against those who viewed the legislation primarily as a process-oriented check against the use of race or gender as a factor in employer decisionmaking. The former generally endorsed a broad interpretation of the Act generous to plaintiffs, while the latter tended to be more receptive to interpretations favoring employers.

The fault lines in contemporary scholarship are much harder to characterize. Contemporary doctrinal debates have tended to focus narrowly on particular statutory provisions or modes of proof, and emerging theories do not always line up as predictably along ideological lines. The interplay between Congress and the Supreme Court has only made things messier: On several occasions, Congress has stepped in to express its disapproval of conservative Court rulings, without, however, dramatically changing the prevailing judicial approach to interpreting the Act. The last major statutory revision was the 1991 Civil Rights Act, a sweeping reform that affected each major framework of liability, introduced jury trials, and significantly altered the remedial scheme of the Act.

 

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A Market-Based Approach to Telecom Interconnection – Article by David Gilo

From Volume 77, Number 1 (November 2003)
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This Article offers a new solution to the problem of interconnection among telecom networks. According to the Federal Communications Commission’s (“FCC”) proposal, interconnection between local exchange carriers (“LECs”) and long-distance carriers would be mandatory, and all charges demanded by LECs for outgoing and incoming long-distance calls would be regulated down to zero. In contrast, this Article proposes simple regulatory changes that would foster the deregulation of interconnection between long-distance carriers and LECs. Such regulatory changes would enable several market forces, revealed by the Article and neglected by the FCC and the previous literature, to keep LECs’ charges for interconnection from rising above competitive levels and encourage carriers to interconnect. First, long-distance carriers should be allowed to transit long-distance calls made to one LEC’s subscribers by interconnecting with the competing LEC. The Article illustrates that if LECs are forbidden from charging each other for completing each other’s calls, the credible threat to use such transit will induce each LEC to interconnect directly with long-distance carriers and to charge them voluntarily for incoming calls no more than the competing LEC’s marginal costs of transit. Moreover, future growth of cellular telephony and broadband Internet-protocol telephony is expected to strengthen this market force, especially if the FCC’s current requirement that long distance carriers average their rates is eliminated. As to the rates LECs charge long-distance carriers for long-distance calls made by the LECs’ subscribers, if the Telecommunications Act of 1996’s (“1996 Act”) requirement that long-distance carriers equalize their rates is amended, direct competition among LECs is shown to restrain them. Even short of amending the 1996 Act, the Article shows how long-distance carriers’ ability to ask one LEC to transit long-distance calls made by the competing LEC’s subscribers is expected to drive these rates down to the marginal costs of transit. The Article shows how interconnection among the LECs themselves should be regulated in order to enable the proposed deregulation of interconnection between the LECs and long-distance carriers. First, interconnection among LECs themselves should be mandated. Second, LECs should not be allowed to charge each other for completing each other’s calls. The Article also exposes an additional justification for not allowing LECs to charge each other for completing each other’s calls: LECs might negotiate an excessive reciprocal rate for such calls to enforce an implicit commitment on the part of a new LEC entering the market to focus only on “net receivers of calls” (such as Internet service providers), leaving the rest of the market to the incumbent.

 

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