This Article builds on prior legal and policy appraisals of what happens to commercial obligations upon state succession. The author analyzes two recent successions in Kosovo and Iraq, testing the predictive and normative aspects of a policy-oriented approach. Thus, this Article contributes fresh insight into the continued use of the policy-oriented approach to state succession. Specifically, this Article confirms that international legal rules governing the transmission of debt obligations to successor states still do not exist. Policy considerations will inform the decision whether to bind new states to the agreements of their predecessor’s. The author also shows that application of the policy-oriented approach is not necessarily triggered by the formal attainment of statehood, but can be prompted by calls for self-determination by people of a territory. The formal distinction between state and government succession has eroded to the point that a new framework of analysis is supplanting that distinction. The author concludes that, in some disputes, alternative configurations of statehood may, or at least ought to, replace Westphalian statehood in order to accommodate competing policies of self-determination and global stability.

In 2009, the National Academy of Sciences (NAS) published a landmark report on forensic science: Strengthening Forensic Science in the United States: A Path Forward. The Report represents one of the most important developments in forensic science since the establishment of the crime laboratory in the 1920s. Within months, Justice Scalia cited the Report in Commonwealth v. Melendez-Diaz, noting that “[s]erious deficiencies have been found in the forensic evidence used in criminal trials” and “[f]orensic evidence is not uniquely immune from the risk of manipulation.” After two years of studying fingerprints, handwriting, ballistics, and other common forensic techniques, the Academy concluded that “some forensic science disciplines are supported by little rigorous systematic research to validate the discipline’s basic premises and techniques.” Indeed, “only nuclear DNA analysis has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between an evidentiary sample and a specific individual or source.”

The NAS Report’s centerpiece is a proposal to establish an independent federal agency, the National Institute of Forensic Science, to control funding and research in the field. This proposal, which is now before Congress, wrests control of forensic science from law enforcement and was attacked by government agencies before the Report was even released. Although the Report made clear that the Department of Justice, through the FBI Crime Laboratory and National Institute of Justice, had failed in its obligation to improve forensic science, the Report did not provide details of this failure. This Article supplies those details, documenting how government agencies manipulated science at the expense of both science and justice. As the Report notes, basic research in the forensic sciences is weak. Yet, the only agency currently capable of funding that research, the Department of Justice, has hindered efforts to conduct independent scientific studies.

“Forensic evidence is not uniquely immune from the risk of manipulation.”—Justice Scalia (2009)

Most of the work on jurisdictional competition for business associations has focused on publicly held corporations and the factors underlying Delaware’s dominance in attracting formations of large out-of-state corporations. We examine an analogous jurisdictional competition to attract formations by closely held limited liability companies (LLCs). The LLC offered the first attractive business form for closely held limited liability firms unconstrained by the legacy of corporate default rules. State legislatures have adopted and changed LLC statutes rapidly over the past twenty years. Unlike general and limited partnerships, which have been shaped by uniform laws, LLC statutes vary significantly. These circumstances offer an opportunity to test statutory provisions and other factors that influence LLCs’ choice of where to organize. Exploiting a new database that for the first time reveals home and formation states of closely held firms, we find evidence that large LLCs, like large corporations, tend to form in Delaware, and that they do so for many of the same reasons—that is, for the quality of Delaware’s legal system. We reject other potential explanations for LLCs’ formation decisions based on variations in state statutory provisions. Our evidence sheds new light on forces underlying the market for law.

Doctrine is at the center of law and legal analysis. This Article argues that we have fundamentally misunderstood its nature. The conventional approach to legal doctrine focuses on theory and applications: what is the doctrine designed to do and how does it function? But many doctrines cannot be adequately understood or evaluated under the conventional model because they contain an additional, hidden element. They are built on foundational facts: potentially contested factual assumptions embedded in the doctrinal structure itself. Foundational facts are judges’ generalized and invisible intuitions about how the world works. Whether a defendant acted in a particular way out of a particular motive are decisional, rather than foundational, facts. But the likelihood of actors in defendant=s position acting that way or having that motive are foundational facts, and doctrinal rules—including burdens of proof and standards of review—will be structured differently depending on whether judges assume a high or low likelihood. Foundational facts thus drive doctrine. Without an understanding of a doctrine’s foundational facts, we cannot adequately understand the doctrine and its changes over time. Foundational facts only come to light when doctrine shifts, seemingly inexplicably and often without judicial acknowledgment that anything has changed. That doctrinal shift serves as a cue to look for changed foundational assumptions that might be driving the doctrinal change. Identifying those foundational facts, in turn, allows us to better understand and evaluate both the doctrine and its underlying assumptions.

This Essay explores the evolving influence of Twombly and Iqbal on modern antitrust litigation. The author argues that any proposed statutory repudiation of Twombly and Iqbal is premature. He also develops a model that calls for a periodic reevaluation of the overall strength of a plaintiff’s case to see if a final motion dismissing the case or some part thereof is appropriate before discovery runs its course. That approach should be followed in a limited number of big cases. The key to the successful judicial administration of discovery is to require that plaintiffs gather publicly available information in order to make credible their claims of a valid cause of action. It also encourages a more active judicial supervision of discovery in large cases to evaluate whether the evidence produced at any point warrants further discovery. Finally, the author criticizes the current rules governing “civil investigative demands” from the Antitrust Division as being far too intrusive relative to the parallel rules that govern discovery under the Federal Rules of Civil Procedure.

This brief Essay argues that Bell Atlantic Corp. v. Twombly was an oddball case, a massive antitrust action with significant costs and asymmetry of costs, much different than the vast majority of cases in the federal courts. While the Supreme Court and some scholars, including Professor Richard Epstein, have largely justified the new plausibility standard in Twombly on the basis of these costs, they have not shown why the new standard should apply transsubstantively to cases without these same costs, including typical employment discrimination cases. This Essay further argues that Ashcroft v. Iqbal, like Twombly, was an oddball case, though with different types of costs than Twombly. Finally, contrary to Professor Epstein, this Essay argues that the standard under Iqbal and Twombly is likely to be procedurally revolutionary, particularly in employment discrimination cases. Indeed, the new standard could lead to a revolution due to the convergence of the new motion to dismiss standard with summary judgment and the effective death of Swierkiewicz v. Sorema N.A.

This Note analyzes whether there is a need for the Internal Revenue Service (IRS) to monitor corporate governance as it applies to nonprofit hospitals. There has been an increase in scandals involving nonprofit hospitals that are receiving tax-exemption, yet a decrease in charitable care in favor of higher pay for administrators. This led to a string of statutes focusing on corporate governance, as well as the IRS deciding to monitor corporate governance of nonprofit hospitals in its own way by requiring the Form 990. Although no evidence exists to show a link between good corporate governance and tax compliance, the IRS has continued to increase the filing burden on nonprofit hospitals.

The author argues that the Form 990, now required by the IRS, places an undue and unnecessary burden on nonprofit hospitals. The Form 990 is duplicative of other statutes focusing on corporate governance, and it also requires a much larger amount of time and resources than those predicted by the IRS, causing a strain on already limited nonprofit resources. The author suggests that monitoring corporate governance is both desirable and necessary but that the state and health care statutes already in place do a sufficient job of such monitoring. The author concludes that until the IRS has better data to support a connection between good governance and tax compliance, the Form 990 should be suspended, and the IRS should allow nonprofit hospitals to submit their annual compliance reports under other current reporting statutes in lieu of requiring the Form 990. Such an arrangement would save resources for both the IRS and nonprofit hospitals.

The institution of marriage, though deeply rooted in tradition, is becoming insufficient to meet contemporary economic and social demands on its own. Throughout history, cohabitation has been a popular choice for different-sex couples as both a precursor to marriage and as an alternative economic arrangement. Couples choosing cohabitation, however, are not provided the same rights and obligations that come with marriage. This Note argues that marital benefits based on economic and emotional interdependence should not be restricted to married couples. Providing such rights and obligations to cohabiting different-sex couples would allow the couples to enjoy the benefits of a legally recognized relationship without participating in the institution of marriage. Many economic and social advantages that marriage offers are disjointed from the institution of marriage itself; rather, these benefits are simply of the economic ebb and flow of such a relationship. Particularly, the laws of health care, social welfare, and property suggest that economics and contractual freedom offer the proper justification for granting rights typically conferred by a marriage certificate. Recently, states such as Colorado, as well as many foreign countries, have created domestic partnership laws and designated beneficiary agreements that provide unmarried, differentsex couples a stronger potential alternative to marriage. This Note argues that, although a step in the right direction, these laws could go further and should be adopted by more states.

On January 1, 2010, the U.S. Department of Housing and Urban Development (HUD) responded to the real estate lending crisis with revised regulations for the Real Estate Settlement Procedures Act (RESPA). The new regulations require heightened disclosures from lenders to homebuyers and encourage competition among lenders. This Note argues that HUD’s attempts to solve irresponsible lending with further RESPA regulations are misguided. The author contends that the new rules will provide homebuyers with a false sense of security about their mortgages and lenders, without actually protecting them from predatory practices. Instead, this Note suggests a novel solution: lawyers should play a more prominent role in real estate transactions in order to protect consumers.

This Note first traces the growth of the title insurance industry in the United States and shows how this industry pushed lawyers out of residential real estate transactions in many states. The author then explains the original RESPA of 1974, through which Congress responded to a rising tide of anticompetitive practices in the real estate industry by requiring disclosures to borrowers and promoting competition, among other provisions. This Note then details the new RESPA rule, which requires lenders to itemize and guarantee certain real estate settlement costs. The author evaluates the new rule and predicts its consequences, concluding that it will not serve HUD’s avowed goals to end price gouging and spur competition, and instead will create a façade of transparency for consumers. The author recommends instead that lawyers occupy a larger role in residential real estate transactions because they can act to inform and protect homebuyers. The Note concludes by suggesting that federal regulators encourage, or at least do not discourage, homebuyers to seek legal representation for their real estate transactions.

Symposium Introduction

This Article examines some of the legal and political issues raised by the global debate over climate change, with the goal of providing helpful insight to guide future actions. It evaluates the results of the climate talks that took place in Copenhagen in 2010, with a particular emphasis on the opportunity missed by U.S. agriculture in achieving meaningful change. Disappointed by the results of that conference, the author compares the lackluster outcome there with the debate on cap-and-trade legislation in the United States. Detailing an era of missed opportunities, from January 2009 to July 2010, the Article examines the consequential effect on the United States’ ability to develop a more balanced renewable energy policy and for U.S. agriculture to participate in potential markets for carbon. The author concludes by looking forward to what may happen in U.S. politics on climate change and the impact on issues important to agriculture.

This Article argues that a national renewable portfolio standard (RPS) for electric power is not likely to advance its purported goals, nor is it likely to be adopted by Congress in its present proposed form. For one, a national RPS would have geographically disproportionate costs—those costs would be focused on a few, mostly natural resource-poor states, whereas the benefits of job growth and technological adoption in infant industries will be elsewhere. Second, the ability of firms to use operational flexibility regarding their nonrenewable fuel mix to substitute other nonrenewable energy sources for traditional fossil fuels undermines the purported climate change benefits of such a requirement, and usually raises costs and increases inefficiency of energy generation as well. Furthermore, a national RPS fails to address preexisting system-level infrastructure siting and cost allocation barriers in the electric power industry. Without broader reforms to the energy industry, significant new investment in renewable power is unlikely.

Indirect land use change (ILUC)—the theory that the use of cropland for biofuels raises food prices and thus increases the incentive to convert forests and grasslands to crop production, thereby releasing stored carbon and decreasing future carbon sequestration—is a particular concern with ethanol produced from corn kernels since corn is such a major food crop (and livestock feed) and international food commodity markets are relatively inelastic. This Article examines how the Environmental Protection Agency (EPA) dealt with the uncertainty of regulating biofuels policy in the context of corn ethanol, but the lessons have broader applicability to biofuels policy and more generally to decision making under conditions of great uncertainty. The first Part discusses how biofuels may contribute to the mitigation of climate change, analyzes the U.S. statutory scheme for renewable fuels, explores the issues surrounding the statute’s mandate for consideration of ILUC, and explains how EPA resolved the ILUC issue in the case of corn ethanol. The second Part probes EPA’s treatment of uncertainty regarding ILUC in its decision to approve corn ethanol as a renewable fuel—primarily considering whether the broad range of emission figures used made the decision riskier, whether the central estimate used was appropriate, and whether the irreversibility of the decision should have been considered. The third Part considers the policy issues surrounding ILUC more generally—addressing whether ILUC should be considered in biofuels policy or ignored because of concerns about the reliability of models of ILUC and whether there are policy responses that might ameliorate ILUC and narrow the range of uncertainty about its severity. The Article concludes that EPA acted responsibly and in good faith, however, the determination regarding ILUC for corn ethanol involved significant errors of judgment in the treatment of uncertainty. Specifically, EPA should be more sophisticated in its treatment of uncertainty by using the means of probability distributions rather than medians, taking into account lock-in effects and real option values, and explicitly considering attention model uncertainty. EPA, however, was correct to consider ILUC despite the admitted degree of uncertainty regarding ILUC’s magnitude.

Although one of the major objectives of biofuel policy is to contribute to the reduction of greenhouse gas (GHG) emissions, the allocation of feed stocks, like corn, from food to biofuels production contributes to the increase in the price of food and may result in deforestation and the extra release of GHG emissions, often referred to as indirect land use change (ILUC). It is suggested that ILUC will be included in the calculation of GHG emissions in regulating individuals under policies such as the renewable fuel standard (RFS) and the low carbon fuel standard (LCFS). This Article identifies several reasons why regulators should avoid including ILUC in the calculation of life cycle–based biofuel policies like the LCFS and the RFS. First, attributing indirect effects to individuals violates the basic principal that regulations of externalities will hold individuals responsible for activities that they control, not activities controlled by others. Yet, policy parameters can be adjusted to changes in market conditions. Because ILUC is only one type of market-mitigated indirect effect of biofuel production, policy proposals that consider only this indirect effect while ignoring others have basic logical flaws. Second, biofuel ILUCs are unstable and may vary significantly over time and be affected by policy choices; therefore, they are difficult to compute and implement. This extra cost may reduce the gain from introduction of ILUC in regulations. Third, because of the high degree of instability associated with ILUC, its inclusion in biofuel regulation adds another layer of uncertainty that is likely to discourage investment in biofuel. It is expected that continuous investment in biofuels over time will lead to learning-by-doing and improvements of the technology. Reduced investment because of inclusion of ILUC in policies is likely to decrease the GHG emission reduction gains because of lessened technological improvements.

Finally, global problems require global solutions. Therefore, partial policies like the LCFS and the RFS can be good transitional policies, but eventually they have to be replaced by global policies in which countries share responsibilities to reduce GHG emissions. Well-integrated global policies should not include double guessing in the form of regulating indirect effects; their inclusion in the transitional policies may establish precedents that negatively affect policy design in the long run. Recognition that short-term regulations of biofuel should lead to better policies in the long run should lead to a drop in the use of ILUC in biofuel regulation. Instead, governments may consider regulatory standards that become stricter over time and thus demand continuous improvements in performance over time. To conclude, we recommend against incorporating ILUC in biofuel regulation, even though it may benefit the current biofuel producers. Reexamination of the broader policy regime of subsidies and import tariffs and the enforcement of mandates during periods of high food prices is also warranted.

Policies to promote ethanol consumption were implemented on both the federal and state levels during the past decade. Several new biofuel incentives and regulations are expected to be enacted in the near future. Understanding current ethanol consumption is an important first step in assessing the impacts of enacted legislation and formulating sound economic policies that will promote ethanol consumption. Despite the important implications for policy, our understanding of ethanol consumption patterns is quite limited. This Article examines historical state-level ethanol consumption data to understand how ethanol consumption responds to regional macro-economic conditions and incentives set by state governments. Our empirical analysis reveals that changes in ethanol consumption patterns occurred before and after 2005, the year the original Renewable Fuel Standard (RFS) program was signed. Prior to 2005, ethanol consumption responded to incentives set by state governments. These relationships weakened after 2005, however, and ethanol consumption became more uniform across states. These empirical findings can be interpreted as indicating the emergence of a nascent, national market for biofuels. If biofuels are no longer simply local phenomena, some coordination in policy making between the federal and the state governments is necessary to promote biofuels consumption within the United States. Furthermore, technological progress in biofuel production is needed to serve as an engine for the growth of biofuel consumption.

Many states are taking steps to address concerns relating to climate change and clean or renewable energy. New York, for example, generated more than twenty-nine billion metric tons of energy-related carbon dioxide in 2007 alone, more than one-third of which came from its transportation sector. New York commissioned a series of studies to explore the likely positive and negative impacts associated with development of a biofuels industry, the most recent, the Roadmap, came out in April 2010.

This Article provides a general overview of the main issues associated with the process and development underlying the Roadmap, as well as an analysis of the contents of the report. After discussing some of the Roadmap’s underpinnings and major findings, this Article carefully discusses how the findings of the report should be interpreted, particularly given some of the necessary assumptions and uncertainties underlying its analysis. After conducting a thoughtful analysis of a “broad but realistic” examination of major issues and their interactions, the Article offers an insightful conclusion: although the Roadmap does not—and, perhaps, cannot—prescribe any particular course of action regarding whether New York should actively promote an expanded biofuels industry, the Roadmap nevertheless provides policymakers with a detailed examination of the major issues associated with such an expansion.

Bioenergy policy through the past decade has increasingly emphasized combustion and conversion of biomass as a means to combat greenhouse gas emissions, ease dependence on foreign energy sources, and create jobs in rural areas. As demand for biomass increases due to laws such as the Energy Independence and Security Act and the Biomass Crop Assistance Program, questions have arisen as to how “green” biomass cropping really can be if production merely follows an agricultural status quo that has arguably led to environmental problems such as Gulf hypoxia, widespread monocultures with little species diversity, and decreased water quality and quantity. Further, if new biomass cropping replaces food production on the same number of acres, food security issues arise due to increases in commodity prices. If expanded to new lands, native habitats may be destroyed. To address these concerns, many sustainability standards recently have emerged, or likely will issue in the near future. For example, the U.S. Department of Agriculture has issued regulations that require conservation planning in order to receive a BCAP subsidy. California is in the process of developing sustainability standards for biomass used in transportation fuels as well as the generation of electricity. The Council for Sustainable Biomass Production has issued a provisional voluntary standard for the U.S. market. And the Environmental Protection Agency must report to Congress in 2010 on the environmental ramifications of the renewable fuels mandate.

In addition to achieving consistency among biomass sustainability standards, a main challenge moving forward is ensuring credibility and ease of implementation. Existing agricultural conservation programs in the United States contain planning and assessment protocols, practice-based modeling, and program evaluation procedures that can greatly inform efforts to consistently define “renewability” in biomass-specific mandates and subsidy programs. Government agencies, the scientific community, and stakeholders in the process must, however, strengthen their collaborative efforts so that biomass’s potential to significantly improve the agro-environmental landscape through standards is better understood. Most significantly, a rethinking of existing agricultural conservation programs in the energy biomass context has the real potential to create an entirely new sustainability paradigm for the entire agricultural sector.

Concerns about energy security, reduced dependence on exhaustible fossil fuels, and climate change have led to significant policy support for biofuels, particularly for cellulosic biofuels. The Biomass Crop Assistance Program (BCAP) and volumetric tax credits for biofuels seek to supplement the Renewable Fuel Standard (RFS) and provide incentives for producing and blending cellulosic biofuels. This Article examines the effects of these policies on the mix of biofuels produced, food and fuel prices, and consumption and greenhouse gas (GHG) emissions as compared to the RFS alone. It also examines the effects of two performance-based policies that target incentives based on the GHG intensity of fuels. This Article finds that the BCAP and volumetric tax credits together lead to biofuel production that exceeds the minimum required by the RFS by 26% and to a significant transition away from corn ethanol and toward cellulosic biofuels. They also reduce GHG emissions by 3% and gasoline consumption by 100 billion liters relative to the level with the RFS alone. These subsidy policies are costly for the government and for the economy, however, imposing a welfare cost of $122 billion over the 2007–2022 period. Replacing these payments by subsidies based on carbon credits generated by a feedstock relative to gasoline, though less costly, does not create significant incentives to change the mix of biofuels beyond the levels mandated by the RFS. In contrast to these subsidy policies, supplementing the RFS with a $30 per metric ton of carbon dioxide equivalent emissions carbon price instrument is found to achieve the 3% reduction in GHG emissions with a gain in social welfare and lower costs to the government relative to the RFS alone.

Land use change (LUC) may be the single most important factor in determining the sustainability of biofuels. To ensure that legal standards are effective in limiting climate change forcings, it is essential that LUC be given thorough and rigorous treatment. This Article examines the premise that the climate impacts of LUC—as characterized by biofuels life cycle analyses (LCAs)—are completely fungible with the climate impacts of greenhouse gas (GHG) emissions from other sources. LUC affects climate through both ‘biogeochemical’ and ‘biophysical’ forcings, or the climate impacts of LUC through alteration of atmospheric GHG concentrations and through perturbation of water and energy exchange between the land surface and the atmosphere, respectively. This Article presents a method for thoroughly quantifying the GHG effects of LUC and also provides quantitative estimates of the magnitude of biophysical forcings. The Article then assesses the comprehensiveness of the accounting systems used by major fuel standards. Biofuel LCAs are increasingly including the most important elements required to thoroughly quantify the GHG effects of LUC, yet they are not comprehensive in all aspects and generally use improper accounting for the timing of emissions. Biophysical forcings are sometimes more influential than biogeochemical forcings. However, they have never been included in assessments of the impacts of biofuels-related LUC. Thus, biofuels LCAs are not accurately quantifying the climate impacts of LUC.

Commercial scale deployment of geologic carbon sequestration (GCS) requires a settled legal framework to justify extensive up-front capital investments. A key missing piece in the current legal environment is allocation of property rights—specifically ownership of the subsurface pore space for permanent sequestration of captured carbon dioxide. This Article seeks to begin untangling the various claims to pore space ownership based on the operational and geologic characteristics of the GCS activity (e.g., enhanced oil recovery, coal bed methane extraction, inaccessible coal seams, saline aquifer or basalt formation). Sequestration operations in each of these geologic zones implicate unique property rights issues. In some jurisdictions, state legislatures have attempted to simplify disputes (and appease constituents) by allocating pore space to the surface estate. Other legislative efforts, although unsuccessful, have sought to vest these rights in the state. Approaching pore space ownership from an economic theory rather than responding to political influences, however, provides a perspicacious basis to balance competing interests (e.g., surface estate owners, energy companies seeking GCS alternatives to alleviate impacts of prospective carbon taxing) to maximize efficient use of this resource. Accordingly, this Article identifies and analyzes the competing property rights issues embedded within GCS operations from an economic efficiency perspective and proposes a resolution that balances individual property rights with the public good arising from robust GCS development.

This Article analyzes the development and dissemination of environmentally sound technologies that can address climate change. Climate change poses catastrophic health and security risks on a global scale. Universities, individual innovators, private firms, civil society, governments, and the United Nations can unite in the common goal to address climate change. This Article recommends means by which legal, scientific, engineering, and a host of other public and private actors can bring environmentally sound innovation into widespread use to achieve sustainable development. In particular, universities can facilitate this collaboration by fostering global innovation and diffusion networks.

The doctrine of constitutional stare decisis—the time-honored tradition by which the Supreme Court defers to its prior decisions and applies its precedents to new cases with similar facts—has come under attack both in the scholarly community and in the high court itself, where Justices appear to pay increasingly less deference to prior decisions in deciding new cases before the Court. This Note reaffirms the importance of constitutional stare decisis in maintaining the Supreme Court’s judicial efficacy and credibility through an examination of the Court’s inconsistent Fourth Amendment jurisprudence with regard to the “search incident to arrest exception,” most recently applied, and modified, in Arizona v. Gant.

After a reexamination of the history and rationales underlying constitutional stare decisis doctrine and a discussion of the factors for determining whether to apply prior precedents to new cases, the author discusses the convoluted history of the “search incident to arrest exception” to demonstrate the confusion resulting from a failure to adopt a consistent approach to stare decisis at the constitutional level. In order to strengthen constitutional stare decisis, the author recommends making the application of stare decisis to new Supreme Court decisions a rebuttable presumption. Further, the author recommends consistently applying the Rehnquist Court stare decisis factors of workability, reliance, changed circumstances, and developments in the law, along with the additional factors of the impact on liberty and the availability of alternatives to deviating from precedent, to determine whether to abide by a previous constitutional interpretation.

This Note evaluates the effectiveness of juror questioning and sentencing in the context of Japan’s recently instituted quasi-jury (saiban-in) system. The author begins by chronicling the Japanese and American experience with lay judicial participation and examining the procedural details of the saiban-in system. Lay judicial participation has received a mixed response in American jury research, but Japan’s system appears to be accomplishing its goal of involving Japanese citizens in the criminal judicial process. The author attributes the system’s preliminary success to Japan’s use of juror questioning and sentencing. Drawing upon American research, the author suggests some modifications that could reduce the risks created by lay judicial participation and enhance the system’s effectiveness. If Japan’s jury structure continues to enjoy its current success, a comprehensive study of the saiban-in system may provide valuable lessons in how to improve the American jury experience by implementing effective jury questioning and sentencing procedures.

Perceiving a need for information about the potential negative societal effects of legalized gambling, the U.S. Congress organized the National Gambling Impact Study Commission (Commission), which in 1999 concluded that gambling expansion should be suspended pending further research. In spite of the Commission’s recommendations, in 2009 the Illinois General Assembly passed the Video Gaming Act, the largest gambling expansion in the state’s history, which has the potential to quadruple the number of gambling positions in Illinois. Even more troubling, the new positions will consist entirely of video gambling machines, a variety of “convenience gambling” whose cost to benefit relationship for a state’s citizens is highly questionable. The Commission has gone so far as to recommend that states not only halt expansion of convenience gambling, but roll back existing operations as well. In light of the Commission’s research and recommendations, serious questions arise about whether the Illinois legislature acted in the best interests of Illinois’ citizens when it passed the Video Gaming Act.

This Note contends that the decision to pass the Video Gaming Act was unjustified on both economic and ethical grounds and was motivated solely by the General Assembly’s desire to raise revenues at any cost. The author begins by recounting the passage of the Video Gaming Act, noting the rushed passage of the Act and Illinois politicians’ unwillingness to entertain public opinion on the matter. The author then argues that the Act is not economically justifiable because the lack of reliable information about video gambling precludes an effective cost-benefit analysis at this point, and the existing information shows that a video gambling expansion would likely fail a cost-benefit analysis should one be conducted. The author then proceeds to show that the Act is unjustifiable under a moderate deontological analysis as well, as the uncertain benefit to Illinois’s citizens cannot override the acknowledged social costs that video gambling imposes. The Note concludes by arguing that Illinois lawmakers should resolve these problems by repealing the Act, gauging public opinion, conducting situation-specific research on video gambling, and erecting safeguards against future abuses of political power.

The Supreme Court’s recent decision in Leegin Creative Leather Products, Inc. v. PSKS, Inc., which replaced the longstanding per se rule against resale price maintenance (RPM) with a rule of reason approach, has resurrected the debate over RPM. Legal and economic proponents of this practice again point to its potential procompetitive benefits, while RPM detractors emphasize its possible anticompetitive consequences. Despite their disagreements, scholars, the Court, and the limited extant empirical data appear near-unanimous in agreeing that such arrangements can either increase or decrease efficiency. Consequently, the RPM debate predominantly revolves around theoretical assertions regarding the likely frequency and significance of RPM’s pro- versus anticompetitive manifestations.

Importantly, however, both camps in the RPM debate assume that manufacturers are strictly rational actors, who employ only profit-maximizing arrangements. In contrast, our behavioral analysis reveals that real-world, boundedly rational manufacturers are prone to use RPM even in circumstances in which it is neither rationally procompetitive nor rationally anticompetitive. The available evidence further shows this excessive reliance on RPM diminishes over time, as biased manufacturers either learn of their mistake or are disciplined by the market. The slow demise of this practice, however, may entail efficiency losses over many years and sometimes generate competitive harm as well. Yet because RPM will sometimes be used procompetitively, Leegin’s rejection of its per se condemnation is still justified. The present analysis therefore not only offers a novel account of RPM, but also shows how boundedly rational RPM challenges the various post-Leegin approaches developed by courts, enforcement agencies, and scholars on both sides of the RPM debate. We close by outlining our alternative, behaviorally informed, structured rule of reason inquiry for this restraint.

Since its judicial creation in the 1970s, strong controversy has surrounded the practice of trademark merchandising. Trademark scholars have generally opposed merchandising rights because of the departure from the traditional interpretation of trademark law—protecting consumers and market competition—in favor of a direct protection of trademark value. Despite this opposition, courts and Congress have favored the acceptance of this practice by broadening the scope of trademark protection and by introducing the concept of confusion as to the products’ “sponsorship” or “affiliation” as part of the standard for trademark infringement. Not surprisingly, trademark scholars have criticized these developments but have not offered, so far, a solution that is responsive to the changes that have affected the role of marks in the past decades. This Article fills this gap and, contrary to the position of the majority of scholars, advocates in favor of providing legal protection to trademark merchandising under the current rule of trademark law. Specifically, this Article accepts that in the modern economy the concept of commercial source can also include products’ sponsorship and affiliation as indicated by the courts and accepted by the legislature. Based upon this premise, this Article recognizes that the use of trademarks on promotional products that are offered for sale can legitimately serve the traditional distinctive function of trademarks and indicate to the public the origin of the marked products, at least in terms of trademark owners’ sponsorship or affiliation. Contrary to common criticism, this recognition of merchandising marks as legitimate source indicators would not negatively affect competition in the market or consumers. Instead, it would finally provide a clear guideline in this important area of the law and subject trademark merchandising to the general rules for the acquisition and enforcement of trademark rights as well as to existing trademark defenses and fair uses.

This Article examines Congress’s ability to consult its lawyers and other expert staff in conducting oversight. For decades, congressional leaders have acquiesced in the executive branch’s insistence that certain intelligence information not be shared with congressional staffers, even those staffers who have high-level security clearances. As a result, Congress has been hobbled in its ability to understand and analyze key executive branch programs. This policy became particularly controversial in connection with the Bush administration’s warrantless surveillance program. Senate Intelligence Committee Vice Chair Jay Rockefeller noted the “profound oversight issues” implicated by the surveillance program and lamented the fact that he felt constrained not to consult the committee’s staff, including its counsel. This Article puts this issue into the larger context of Congress’s right to access national security-related information and discusses congressional mechanisms for protecting the confidentiality of that information. The Article also provides a comprehensive history of congressional disclosures of national security-related information. History suggests that the foremost danger to confidentiality lies with disclosure to members of Congress, not to staff. The Article identifies several constitutional arguments for Congress’s right to share information with its lawyers and other expert staff, and explores ways to achieve this reform.

Over the last few decades, states have imposed tougher punishments on drunk drivers. This Article argues that increasing punishments is counterproductive. If legislatures are seeking to hold guilty offenders accountable and deter drunk driving, they should keep punishments low and instead abolish the right to jury trials. Under the petty offense doctrine, the Supreme Court has authorized states to abolish jury trials when defendants face a maximum sentence of six months’ incarceration. Social science evidence has long demonstrated that judges are more likely to convict than juries, particularly in drunk driving cases. And researchers have found that the certainty of punishment, not the severity of punishment, is the key factor in maximizing deterrence. Thus, by keeping maximum sentences for most drunk drivers at six months or less, states could abolish jury trials, thereby raising conviction rates and improving general deterrence. Additionally, bench trials would be far more efficient because the greater certainty of conviction would give defendants an incentive to plead guilty rather than taking their cases to trial. When trials do occur, they would be much faster because lawyers would not have to select juries or present detailed background testimony to already knowledgeable judges. At present, only a handful of states have eliminated jury trials for drunk drivers. This Article outlines the specific steps that states should take to abolish jury trials and thereby increase convictions, maximize general deterrence, and more efficiently handle one of the most common crimes in the United States.

As part of the Baum Lecture Series at the University of Illinois College of Law, Columbia University President Lee C. Bollinger delivered a lecture on September 14, 2010, on the essential role of a global free press in providing the information needed to understand the many problematic issues we face as a result of globalization. In this presentation, President Bollinger addressed the challenges of maintaining high-quality institutions of American journalism with an international reporting capacity in the face of rapidly changing market forces. He further discussed America’s interest in seeing the rise of a free and independent press in nations such as China that lack traditions of free speech comparable to those developed in the United States over the past century.

President Bollinger begins with a discussion of globalization and the necessity of establishing a free and open press able to report on a globalized society. He then discusses the evolution of journalistic institutions in the United States and the alarming decline in the international reporting capacity of the U.S. media. President Bollinger offers several recommendations for how the United States may convince closed societies, such as China, to start moving towards more open communications systems as part of their economic and political development. He further recommends public support for international newsgathering operations serving American audiences and suggests that such support, in combination with private media, will be necessary to keep the United States informed about global society.

Many business decisions require consideration of regulatory risks and the potential of future litigation. Consideration of these business decisions often produces documents that serve a dual purpose—the business purpose of appropriating litigation and regulatory risks into the company’s budget and the litigation purpose of analyzing anticipated lawsuits. The work product doctrine, codified in the Federal Rules of Civil Procedure Rule 26(b)(3), protects those documents “prepared in anticipation of litigation” from discovery by an adversary in order to protect the mental impressions and litigation strategy retained by a party’s attorney. The work product doctrine, however, is problematic when applied to dual-purpose documents, for they serve both litigation and business purposes. The federal Circuit Courts of Appeals are split concerning the application of the work product doctrine to dual-purpose documents, with some adopting a broad approach that is inconsistently applied, while others employ a narrow test that fails to capture the underlying rationale of the work product doctrine. This Note analyzes the different approaches federal courts use when determining what constitutes documents “prepared in anticipation of litigation” and argues that the phrase should be broadly construed in a consistent manner in order to preserve the policy considerations that justify the work product doctrine. Furthermore, this Note argues that the “ordinary course of business” exception to the work product doctrine should not subsume dual-purpose documents that would otherwise be protected.

This Note explores the competing theories that have informed past and current homeschooling regulation. The author begins by chronicling the history of state education regulation and the advent of homeschooling. This history demonstrates that critics of homeschooling regulation base their theory on the incorrect assertion that education has historically been governed by parental choice. This history also shows that some past state regulations had the troubling objective of forcing minority groups to conform to the majority conception of education. Drawing upon this background, the author concludes that state regulation of homeschooling is appropriate but must be limited in nature. If state regulations serve to objectively and unobtrusively assess the adequacy of a homeschooled child’s education without dictating the methodology, then states can fulfill their role of providing adequate education without infringing on parents’ interests in their children’s education.

To facilitate its task of ensuring the safety of medical devices in the United States, the Food and Drug Administration (FDA) collects “adverse event reports” regarding illnesses or injuries that may have been caused by the use of a medical device. Hospitals and similar institutions are required by a federal statute to report life-threatening and other serious illnesses or injuries to the FDA, but anyone may

voluntarily report less serious incidents as well. To encourage reporting, the aforementioned statute and the FDA’s regulatory scheme take certain measures to protect the identities of individuals who make the reports. The statute generally disallows the use of mandatory reports in civil litigation, including barring their admission as evidence. Separately, the FDA’s regulation prohibits the FDA or other parties from divulging any information in a voluntary report that could be used to identify a subject or reporter. The information contained in both types of reports, however, remains useful to litigants bringing suit against device manufacturers, and production of the reports often is requested during discovery. But allowance of this type of disclosure could have a chilling effect on the reporting that Congress and the FDA have tried to encourage, and thus, inquiry is needed as to the proper treatment to be accorded discovery requests for adverse event reports.

This Note draws a clear distinction between mandatory reports, governed by the statute, and voluntary reports, governed by the regulation, and explores the problematic treatment that these provisions have been given. Beginning with a discussion of the statute and regulation, this Note details the competing interests which courts have sought to balance in their interpretations of these rules. It then proceeds to a deeper analysis of the case law, arguing that the flawed interpretations advanced by many courts are out of touch with congressional and FDA intent and are suboptimal solutions to the balancing of interests presented. The proposed solution would treat the two types of reports separately. Mandatory reports’ inadmissibility limits the value that they could have to litigants, and thus, courts should concentrate on protecting reporters’ identities by disallowing discovery of the reports. On the other hand, the admissibility of voluntary reports, coupled with the plain language of the regulation, necessitates courts’ allowance of disclosure of these reports, as long as appropriate measures are taken to protect the identities of reporters. The Note concludes that, in any case, Congress and the FDA should amend the statute and the regulation, respectively, to establish their preferred solutions to this question, and end the confusion created by the disparate treatment given by courts.

As the United States remains in Iraq and Afghanistan, stories of abuse by private military contractors (PMCs) have flooded the news. This Note focuses on an area of PMC crime that has garnered less public attention and censure: sexual crimes against civilians in nonwar zones. Emphasizing the lack of legal recourse for victims of sexual crime by PMCs and the systematic failure of the United States to punish sexual crime perpetrated by its own PMCs, the author argues that the United States should be held liable for the sexual crimes that its contractors commit, including those that occur outside of war zones.

This Note first explains the exponential growth in the United States’ use of PMCs and highlights that governmental supervision of PMCs has not kept pace with the number of contractors that the United States employs. Noting that PMCs generally employ former members of the military, the author traces a culture of violence against women back to attitudes learned in the U.S. military, and then shows that PMCs are even more likely to be involved in crimes of sexual violence than U.S. soldiers.

The Note details and analyzes the possibility of responding to PMC sexual violence against civilians outside of war zones under U.S. military law, U.S. criminal law, criminal law where the crime occurs, International Human Rights Law, International Criminal Law, and the U.S. Alien Tort Statute (ATS). The author determines that these methods, as they stand now, are inadequate because of problems of limited jurisdiction, U.S. reluctance to prosecute contractors and willingness to protect U.S. nationals from prosecution abroad, requirements that violence be widespread or systematic before triggering international prosecution, and the absence of state liability for the actions of private individuals, unless the state condones the activities. The author calls for a three-fold solution: first, victims should file complaints against the United States in international courts, under the theory that the United States is liable for its contractors’ acts, because it has condoned them by failing to punish them and even actively discouraging their prosecution; second, victims should sue individual perpetrators in the United States under the ATS, both to compensate victims and to deter contractors from future violence; third, and finally, the United States must act to close the jurisdictional gap that allows PMCs to escape prosecution by signing and supporting international treaties, developing its own stricter system of criminal liability for PMCs, and using contract mechanisms to enforce standards of conduct for PMCs.

Although microfinance has emerged as a key tool to alleviate poverty, the need for microfinance lending vastly exceeds the amount of funds that can be raised from charitable donors. Commercial bank lending currently supplements donor money, but microfinance loans made by banks are expensive and sometimes even exploitive. This Article examines how innovative legal structures can enable microfinance loans to be funded directly from lower-cost, and virtually limitless, capital market sources by removing, or “disintermediating,” the need for a bank intermediary. In that context, this Article identifies and attempts to resolve the resulting law and business issues of first impression and also examines, more normatively, the extent to which microfinance lending should rely on capital market funding sources.

For almost a decade, the United States has deployed unmanned aerial vehicles, or “drones,” to kill targeted members of Al Qaeda and the Taliban. Central Intelligence Agency (CIA) drone strikes in Pakistan have, in particular, stirred strong debates over the legality of such actions. Some commen-tators insist that these strikes are legal under international humanitarian law (IHL) or as a matter of self-defense. Others insist that the United States’ targeted killing amounts to murder.

It is critical for the law to determine how to control killer drones and the future of warfare. As technology evolves, drones will develop sharper senses and become more precise and lethal. The power to use drones to find and kill specific human targets—and states’ temptation to use (and abuse) that power—will grow over time. On other fronts, drones may become fully automated, and their use in surveillance may spread along the borders with Canada and Mexico and into the U.S. heartland.

To rein in the killer drones, this Article looks to foundational IHL principles to develop limits on the CIA’s campaign in Pakistan and on the possible extension of that campaign to other countries outside the United States. In particular, this Article argues that IHL’s requirements of distinction and military necessity generally require the CIA to achieve a very high level of certainty that a targeted person is a legitimate object of attack before carrying out a drone strike. To capture this level of certainty, one might borrow the “beyond reasonable doubt” standard from the criminal law, the “clear and convincing” standard from civil law, or create some new phrase. Also, to honor the principle of precaution, the CIA’s Inspector General must review every CIA drone strike, including the agency’s compliance with a checklist of standards and procedures for the drone program. The results of these reviews should be made as public as consonant with national security. These controls are, in the language of IHL, “feasible precautions” for the remote-control weapons of the new century.

The Article closes by considering whether targeting of U.S. citizens by the U.S. government should be subject to stricter due process controls than targeting of non-Americans—a point that also has stirred controversy. The Article concludes that, if the controls on targeted killing are not good enough for U.S. targets, they are not good enough for Pakistanis, Yemenis, Somalis, and others. The law can develop a set of standards to ensure that states use targeted killing, whether as part of an armed conflict or in self-defense, only against legitimate targets—no matter their citizenship.

With the economic and political conditions of state governments in free fall, attention has turned to major structural deficits in the processes of state governance. Although the prospects for systematic state constitutional reform in light of these grim circumstances have brightened, the focus and strategy of this reform is often fuzzy and incoherent. This Article returns to some fundamental aspects of constitutional government in the contemporary United States. With reference to specific examples of constitutional architecture, it explores the question of how we assess state constitutional failure and how, on the basis of this assessment, we can best undertake structural, institutional, and doctrinal reform.

The Strong Precautionary Principle, an approach to risk regulation that shifts the burden of proof on safety, can provide a valuable framework for preventing harm to human health and the environment. Cass Sunstein and other scholars, however, have consistently criticized the Principle, rejecting it as paralyzing, inflexible, and extreme.

In this reassessment of the Strong Precautionary Principle, I highlight the significant benefits of the Principle for risk decision making, with the aim of rescuing the Principle from its dismissive critics. The Principle sends a clear message that firms must research the health and environmental risks of their products, before harm occurs. It does not call for the elimination of all risk, nor does it ignore trade-offs, as Sunstein has alleged. Rather, through burden shifting, the Principle legitimately requires risk creators to research and justify the risks they impose on society. By exploring where the Principle already operates successfully in U.S. law—examples often overlooked by the critics—I highlight the Principle’s flexibility and utility in regulatory law.

This Article uses chemical regulation as a case study in how the Principle can guide Congress in an ongoing controversy. Congress is considering a major overhaul of the flawed Toxic Substances Control Act of 1976 (TSCA), and this change could be one of the most significant developments in environmental law in a generation. This Article advocates implementing the Strong Precautionary Principle in a replacement statute for TSCA. Under my proposed licensing system, chemical manufacturers would carry the burden to demonstrate that their products do not pose significant risks to human health or the environment. The TSCA example shows that the Strong Precautionary Principle is not a vague abstraction, as critics have alleged, but can instead provide practical guidance for strengthening a troubled, and underprotective, chemical regulatory regime.

On November 11, 2010, at the University of Illinois College of Law, Professor Frederick Schauer of the University of Virginia delivered this lecture as part of the 2010 Baum Lecture Series. Professor Schauer discussed the challenges associated with the often-touted virtues of transparency in public decision making, offering a proposed framework for assessing the goals and principles associated with transparency, transparency’s costs and benefits, and how transparency is related to other principles, including those of the First Amendment.

Professor Schauer begins by discussing the definition of trans-parency and how the degree of transparency is ultimately a function of three variables: the possessor of information, the information that is to be made transparent, and to whom access to information will be given. He then addresses the aims of transparency, in particular its regulatory, democracy enhancing, efficiency promoting, and epistemological goals. Professor Schauer notes how transparency is conservative, seeking to prevent the worst outcomes even at the occasional cost of foreclosing the best ones.

Jury sentencing may offer an alternative to traditional judicial sentencing models, but at what cost? After the Supreme Court’s landmark decision in Apprendi v. New Jersey that only a jury can find aggravating factors that increase a defendant’s sentence beyond the statutory maximum, interest in the possibilities of jury sentencing in noncapital cases has resurfaced in the scholarly community. In the states where jury sentencing procedures are utilized, however, prosecutors often use the threat of jury sentencing mechanisms to undermine defendants’ Sixth Amendment right to a jury trial. This Note examines the problems with jury sentencing mechanisms, particularly when a jury sentence is mandatory in conjunction with a jury trial, and it disputes the notion that the Apprendi line of cases supports an increased sentencing role for jurors under the Sixth Amendment.

The author begins with an overview of Apprendi and subsequent Supreme Court cases which have caused a resurgence in juror sentencing scholarship over the past decade. She also describes the jury sentencing systems in the six states that utilize them: Arkansas, Kentucky, Missouri, Oklahoma, Texas, and Virginia. She then analyzes Apprendi and juror sentencing models, determining that, based on a historical analysis, the Sixth Amendment only protects juror determination of culpability, and that mandatory and pseudomandatory juror sentencing systems undermine the Sixth Amendment right to a jury trial by causing defendants to plead guilty or elect a bench trial to avoid an arbitrary jury sentence. The author recommends that, in states where juror sentencing is utilized, states adopt elective juror sentencing systems where a defendant can choose a jury trial and judicially determined sentence. She further recommends the adoption of juror sentencing guidelines to assist jurors in making consistent sentencing determinations.

In the late 1960s, the opposing ideologies of legal philosophers H.L.A. Hart and Ronald Dworkin began to define the now-ubiquitous debate over the relationship between morality and law; specifically, whether or to what extent the latter is derived from the former. Hart’s position asserts that, although there can be overlap between the law and moral imperatives, laws are not derived from moral conceptions. Thus, it is inappropriate for a judge to consider morality in adjudication, even when current legal rules do not resolve a particular dispute. Dworkin’s philosophy counters by pointing out that legal principles (not only rules) play an essential role in judicial decision making, even in the application of settled law. Dworkin argues that it is the application of these principles, with due consideration for moral concepts, that leads to the correct resolution of cases in unsettled areas of the law. The debate between adherents of these philosophies, however, has largely served to demonstrate that neither concept is an adequate framework for improving the processes of real-life adjudication.

Perhaps reacting to the current disfavor of the concept of an “activist judge,” recent Supreme Court appointees have given short shrift to the idea of jurisprudential philosophy, likening an ideal judge to an umpire who mechanically applies hard-line rules. The author takes issue with these ideas, however, arguing that our modern legal system is too complex to be effectively dealt with by judges who turn a blind eye to jurisprudential philosophy. Acknowledging the limitations of the Hart and Dworkin poles of the law and morality debate, the author turns to Christine Korsgaard’s Kantian constructivist moral theory, which posits that moral truths are not concepts to be “discovered,” but rather that they are constructed by means of practical reasoning.

This Note takes a new approach to the protection of children from abuse and neglect. It argues that children have a right of access to courts guaranteed by the First Amendment’s petition clause. This often overlooked portion of the Federal Constitution overcomes modern jurisprudential obstacles which have refused to extend constitutional protection to child victims of abuse and neglect at the hands of private actors, such as their parents. After a survey of current state practices with respect to the initiation and voluntary dismissal of abuse and neglect proceedings, this Note concludes that restrictions on a child’s right of access to courts to begin abuse and neglect proceedings must be judged under strict scrutiny and that recognition of this right should prevent voluntary dismissal of abuse and neglect proceedings.

No Abstract Available

Although law and economics scholarship has grown rapidly in recent years, Japanese scholars (with prominent exceptions, to be sure) have embraced the approach less enthusiastically than their U.S. peers. I explore some “explanations” for this reticence—particularly, the location of legal education in the undergraduate curriculum and the long-term Marxist domination of economics faculties. Ultimately, these “explanations” remain unsatisfactory. The undergraduate location of law does not explain the reception of law and economics across a broader sample of countries, or why universities keep law in these undergraduate departments in the first place. And Marxist dominance is not the cause of an intellectual outcome; instead, it is itself an intellectual outcome.

At root, the reason for the difficulty in ex-plaining patterns of intellectual diffusion lies in the paucity of hard-edged incentives in higher education. Although universities compete, they do not compete with anything approaching the intensity of for-profit firms. As a result, the mechanisms behind the equilibrium outcomes we observe in economic markets simply do not apply in education. Lacking those mechanisms, universities might still converge on superior intellectual approaches. Or they might not.

Empirical legal studies (ELS), according to this Article, is the maturation of law and economics (L&E) into the long-awaited science of law. The main sociological consequence will be the grad-ual spread of ELS and L&E into the nonelite law schools. This process can only go so far because science concerns law’s effects, whereas teaching at nonelite law schools concerns law’s content. To learn law’s content, pass the bar exam, and practice law, students need an intuitive under-standing of law’s effects. To move to the center of law teaching and practice, the next task of ELS is to make the correct interpretation of law depend significantly on its scientific consequences, not merely its intuitive consequences.

This Article discusses the role of law and economics in Europe’s law schools, paying attention mainly to local law and economics efforts, as opposed to internationally visible research output and education. The goal is to provide a more complete picture of the importance of law and economics in European law schools, thus allowing for a more robust analysis of the challenges to a broader adoption of law and economics among European law faculties. This Article begins with an overview of law and economics in Europe at present. It proceeds to analyze incentives that currently exist—or could be created—which further the adoption of law and economics among law faculties and orient the research output to a national audience. The Article then examines communication issues associated with local law and economics efforts and offers suggestions regarding how to successfully overcome challenges raised by those issues which have an impact on the scope of study and use of law and economics in law schools and legal communities. The Article also includes meaningful insights and practical feedback from professionals in the field. Ultimately, the Article concludes that, in Europe, the practice of law and economics by law faculties varies greatly between countries, that Europe’s internationally visible law and economics outputs do not give the full measure of its total law and economics production, and that, while there are several barriers to broader adoption of law and economics among law faculties in Europe, those barriers are not insurmountable.

Law and economics is influential in U.S. legal scholarship, but not as much elsewhere. Different explanations have been suggested for this. In this Article, I argue that the problems faced by law and economics outside of the United States are neither particular to the field nor to the local context. I offer an interpretation based on the similarities between legal parochialism and trade protectionism. A tentative prediction is that globalization in legal markets might change the current patterns.

This Article briefly reviews where law and economics has been and then sets out important problems it now faces. My primary theme is that law and economics faces two two-culture problems. The first is between scholars who self-identify as being in a field–torts, contracts–and who do not use economics in their work and scholars who self-identify as being in the same field but who do. The second is between “field scholars” and technically trained scholars who are not in any particular legal field but who rather look for problems their techniques can solve. The second problem seems easier to ameliorate than the first. Both law and economics types make less progress with implementation issues than they should because they do not access the insights that rational actor political science can yield, a third two-culture problem that seems easier to solve than the others.

In tribute to the lifetime achievements of Dr. Thomas S. Ulen, this Article addresses the topic of the future of law and finance within the broader context of the future of law and economics. After high-lighting some of the differences between the U.S. and European approaches to law and finance, it focuses on specific law and finance issues that were involved in the financial crisis (including the regulation of financial institutions) and draws some tentative lessons for the future development of new research paradigms in law and finance. Finally, this Article advocates a more risk-based approach of corporate governance for banks as well as the need for specific corporate governance models. Far from having a declining impact on legal reforms and scholarship, the impact of law and finance is on the rise.

This Article explores the need for an increase in inter-interdisciplinary legal scholarship, suggesting that legal scholars from different traditions and backgrounds need to sit down at the same table and start talking to one another. The author presents an argument in favor of an integrated model of legal scholarship in which norms of intellectual modesty and cooperation fuel the development of interdisciplinary work. He develops a functional hierarchy which allows scholars to start with the first, threshold ques-tion, then work down to the operational details as they carefully consider our accumulated learning about why and how people actually act. After explaining the various functions in the hierarchy, he explains that the vision of the hierarchy creates a structure within which vigorous, highly interactive, and highly productive conversations can take place. Finally, the author concludes that the unifying theme of legal scholarship—multifaceted learning about social governance—offers legal academics a golden opportunity to break out of their silos and engage one another.

While law and economics has become an estab-lished mode of analysis within the United States, it is generally asserted that law and economics “barely exists” in European countries. In order to support this claim, scholars have looked to various metrics, such as hiring of economists by law schools, publications in major journals, and law and economics conference participation, all of which suggest the United States as being sig-nificantly more advanced than Europe in its de-velopment of law and economics.

This Article states that the gap between the United States and Europe regarding the development of law and economics is greatly exaggerated. We argue that, due to the failure to control for institutional differences between academics in the United States and Europe, existing metrics fail to adequately capture the rate at which law and economics has developed in Europe.

In order to appreciate the contribution of law and economics in Europe, we emphasize the distinction between fundamental and applied domestic contributions to a field of scholarship. We sug-gest that a significant body of European law and economics scholarship fits in the applied group. Moreover, given the institutional obstacles to interdisciplinary research at European law schools, specifically the lack of incentives to produce such scholarship, the more puzzling question is why law and economics is practiced at European law schools as much as it is today. We find that the field of economic analysis of law has inspired impressive entrepreneurial efforts in Europe. The accomplishments of the law and economics movement in Europe are unfairly neglected when measuring scholarly productivity without accounting for institutional differences in educational markets.

Although “present bias” (or weakness of will, impulsiveness, myopia, or bounded willpower) was flagged as an issue for legal examination by Tom Ulen and Russell Korobkin over a decade ago, the concept has received insufficient attention in the legal field—and most of that attention has focused on its implications for the regulation of credit and savings. But, as demonstrated by this Article, the inconsistency of time preferences has wider implications, especially for criminal law. First, present bias may have significant implications for the general deterrence of crime. Individuals with time-inconsistent pref

erences may give in to immediate temptations to offend, even though they will not plan to exploit more distant opportunities to offend. To create additional deterrence by exploiting the present bias, one must either make the deferred costs of crime immediate or make the immediate benefits of crime deferred. For this reason, present bias height-ens the importance of timing arrests closer to the commission of a crime—which suggests overlooked benefits from undercover operations. It also increases the efficiency of private crime prevention when these measures pose costs that occur contemporaneously with the benefits of crime. Second, present bias explains addiction, otherwise puzzling conditions of probation and parole, and the self-control mechanisms for dealing with addiction and tempting criminal behavior. Preventative measures, whether imposed by the state as a condition of probation and parole or imposed by the potential offender through “self-exclusion,” work by preventing an individual from having the opportunity to succumb to temptation.

In the wake of financial crises, public au-thorities often respond by using law to modify private contracts, transferring value from those who fare better in the crisis to those who fare worse. From the perspective of the crisis victim, this is a bailout. Because this Article focuses on the perspective of the other party to the contract (specifically on the incentives this response creates to the other party), this Article will refer to such a response as a “bail-in.” Recent examples include staying foreclosures, authorizing bankruptcy courts to modify mortgage terms, or threatening criminal prosecution to induce banks to undo transactions made with their clients.

Bail-ins have greater political appeal than other forms of redistributive government action (e.g., increased government spending and taxation). Bail-ins are expected to reduce future investment, as investors fear similar actions in future crises. But how harmful is this? Market skeptics question that the market correctly determines the optimal amount of investment and are thus untroubled by government’s manipulation of investment. And to appease those who do trust market allocation of investment, government can offset the investment reduction by subsidizing investment (e.g., making mortgage interest tax deductable to encourage lending and offsetting the effects of staying foreclosures or of court-modified mortgage terms).

This Article argues that bail-ins are significantly harmful from both market-trusting and market-skeptic perspectives. Rather than a permanent reduction in future investment, bail-ins reduce investment cyclically—significantly when the bail-in is imposed but declining gradually as cognitive biases cause managers to underestimate the risk of future contract modifications and as agency costs incentivize the managers to increase investment regardless of future bail-in risk.

Cyclical fluctuation in investment deterrence may seem less harmful than permanent deterrence, but, in fact, the opposite is true. As this Article explains, cyclical fluctuation of investment makes bail-ins harmful from the perspectives of both market skeptics and market trusters, and it exacerbates the magnitude of future business cycles.

The battle to separate the economic analysis of legal rules and institutions from the straightjacket of strict rational choice assumptions has been won by the proponents of “behavioral law and economics.” With the “revealed preferences” assumption of neoclassical economics—that individual behavior necessarily maximizes subjective expected utility—discarded, what comes next for the discipline of law and economics? This Article argues that theorists should turn their attention to a series of philosophical and methodological problems that surround the measurement of subjective expected utility: (1) the need to recognize and value autonomy for its own sake, separate from its ability to enhance utility; (2) the need to advance a theory of subjective utility that takes into account the use of heuristics in the construction of preferences as well as in understanding facts and judging probabilities; and (3) the need to recognize and confront the consequences of individual difference in the extent of bounded rationality.

Over the past decade, psychological research has enjoyed a rapidly expanding influence on legal scholarship. This expansion has established a new field—“Behavioral Law and Economics” (BLE). BLE’s principal insight is that human behavior commonly deviates from the predictions of rational choice theory in the marketplace, the election booth, and the courtroom. Because these deviations are predictable, and often harmful, legal rules can be crafted to reduce their undesirable influence. Ironically, BLE seldom recognizes that its intellectual origins lie with psychology more so than economics. This failure leaves BLE open to criticisms that can be answered only by embracing the underlying psychological foundation of the field. Embracing psychology is harder than it seems, however, because psychology meshes much less easily with law than does economics. Consequently, BLE has yet to fully realize its potential and might never successfully do so

This Article presents a critical review of the behavioral analysis of crime control. It shows that although behavioral studies have offered many insights as to the way humans behave, they do not offer clear predictions as to the way criminals are expected to behave. The indeterminacy of behavioral analysis stems from three distinct factors. First, the cognitive biases upon which behavioral analysis is built are often ill-defined. Second, for many cognitive biases, there exist “counter biases” that function in an opposing manner. Finally, social forces, such as norms and culture, interact in an unpredictable fash-ion with cognitive biases. In light of these problems, the Article suggests a new research agenda for scholars who wish to develop an accurate model of criminal behavior.

This Article describes the origins of three movements in legal academia: empirical legal studies (ELS), law and society, and law and eco-nomics. It then quantifies the distribution across scholarly fields (for example, economics and psychology) of authors in these movements’ journals and reports the impact of the movements’ scholarly journals. By focusing on two leading law and economics journals, this Article also explores the effect of a journal being centered in law schools rather than in a social science discipline. It suggests that ELS has achieved rapid growth and impact within the academic legal community because of (1) its association with law schools, and (2) its receptiveness to contributions by scholars from all social science disciplines. Concerns about the quality and growth of ELS are found to lack persuasive support.

Inspired by the retirement of Professor Tom Ulen of the University of Illinois, the author considers the growth and development of empirical legal scholarship over two decades—a period of time that corresponds, not coincidentally, with Professor Ulen’s career. Starting in the 1990s when empirical scholarship had not yet “caught on,” the author first documents the increase in quantity of empirical scholarship over two decades. Next, the author applies a law and economics perspective to the recent surge in empirical scholarship, explaining that the trend has been fueled by an increase in the number of empirically trained scholars and also by increased demand for this type of scholarship. The author concludes by reflecting on Professor Ulen’s contribution to legal scholarship and suggests the time has come to ask not whether empirical legal scholarship has arrived but why it took so long to do so.

In this brief Article, I explore the growing empirical evidence in support of the public choice model of judicial decisionmaking. Although legal scholars have traditionally been reluctant to engage in a critical inquiry into the role of judicial self-interest on judicial behav-ior, recent empirical studies confirm many of the predictions of the model. As a result, the public choice model has gained broad ac-ceptance across a range of disciplines, courts, and even the U.S. public.

This Essay explores the future of law and economics. The author begins by reviewing Tom Ulen’s attempts at predicting the field’s future in 1997 at his lecture “Very Like a Whale.” He then follows Tom Ulen’s idea that law and economics scholars might do well to engage in more “controlled experiments” to make his own set of predictions. His first prediction is that law and economics scholars during the next decade will exploit regression discontinuity to tease out the causal impact of legal rules. Next, he predicts that law and economics scholars will exploit unintended experiments to tease out causal impacts of the law. Finally, the author predicts that law and economics scholars will, with the help of government officials, conduct intentional experiments to tease out causal impacts of the law.

The recent growth of empirical scholarship in law, which some have termed “empirical legal studies,” has received much attention. A less-noticed implication of this trend is its potential impact on the manner of scholarly production in legal academia. A common prediction is that academic collaboration rises with scholarly specialization. As the complexity of a field grows, more human capital and more diverse types of human capital are needed to make a contribution. This Article presents two tests of whether empiricism has spurred more coauthorship in law. First, the Article shows that the fraction of articles in the top fifteen law reviews that were empirical or coauthored (or both) trended upwards between 2000 and 2010. The increase in empirical articles accounted for a substantial share of the growth in coauthored articles, and the correlation between coauthorship and empiricism persisted after controlling for numerous other influences. Second, the Article examines the articles published since 1989 in two prominent, faculty-edited journals specializing in law and economics: the Journal of Legal Studies and the Journal of Law, Economics and Organization. Coauthored articles were far more common in these journals than in the general interest, student-edited law reviews—a pattern which itself is consistent with the specialization hypothesis. The share of articles without empirical analysis or formal models in these journals plummeted over this period, while coauthorship rose sharply. These results support the view that specialization, and specifically the growth of empirical scholarship, has contributed to the trend of coauthorship in legal academia.

This Note analyzes the use of confidential sources in securities litigation cases. The fraud at issue in securities cases generally takes place behind the closed doors of the corporate boardroom, and an inside, anonymous source is often needed to substantiate these allegations of fraud. However, in response to what it perceived as an unacceptably high number of securities litigation cases, Congress adopted the Private Securities Litigation Reform Act (PSLRA), which frus-trated the common practice of relying on confidential sources. The purpose of this act was twofold: reduce the number of vexatious securities cases but nonetheless encourage valid claims, thus promoting the proper regulation of the securities markets. In order to accomplish these goals, Congress raised the pleading requirements. The PSLRA now requires that plaintiffs pleading a securities action plead their claims with greater particularity. In response, courts have struggled with how to evaluate the use of these crucial sources within the new standard.

The author discusses three standards that courts take in addressing this problem. Some courts completely discount allegations made by a confidential source. Other courts allow the com-plaint to proceed, provided that the plaintiff has described the source in adequate detail. Finally, some courts take a middle approach and remain highly skeptical of confidential sources but nonetheless refuse to discount their allegations. The author suggests that courts should apply a middle-ground approach. A middle-ground approach is sufficiently lenient, promoting the regulatory effect offered by securities complaints, and ap-propriately skeptical, thus discouraging vexatious litigation.

Legal scholarship on patent law and jury trials generally presents a cautionary tale: patent law is far too complex for the jury, yet parties demand a jury trial in patent cases at their own risk. This Note, in contrast, argues that the Seventh Amendment right to a jury trial has been understood and applied too narrowly in the context of patent litigation, particularly in the case of alleged infringers who request a jury trial. The author first traces the history of the Seventh Amendment right to a jury trial, explaining the impact of the division between law and equity on the interpretation of the Seventh Amendment. The author then discusses the development of Seventh Amendment case law outside of patent litigation to demonstrate the Supreme Court’s recent trend to recognize a right to a jury trial in mixed cases of law and equity. The author argues on the basis of this trend that the Supreme Court has expanded its definition of cases that qualify for jury adjudication.

Then, focusing specifically on patent litigation, the author first analyzes the Seventh Amendment in “traditional” infringement cases, in which a patentee discovers an infringing use and sues for damages or an injunction, and the alleged infringer may counterclaim on the basis of invalidity and noninfringement of the patent. The author argues that although the general consensus among courts is that the defendant-infringer’s right to a jury trial depends on the complaint filed by the plaintiff-patentee, language in “traditional” infringement cases on the importance of the jury trial suggests that invalidity and noninfringement defenses should qualify for jury adjudication, no matter the plaintiff-patentee’s complaint. Second, the author examines the Seventh Amendment in “reverse” infringement cases, in which an alleged infringer files for a declaratory judgment of invalidity or noninfringement of the patentee’s patents. Building on the arguments of important dissents in “reverse” infringement cases, the author reasons that because a declaratory judgment action seeks to determine the legal rights of the patentee and the defendant-infringer, a jury trial should be granted whenever requested in these cases.

Finally, the author recommends first and foremost that what remains of the antiquated distinction between law and equity should be discarded in all cases interpreting the Seventh Amendment. Second, the author argues that, even if the distinction between law and equity persists in the interpretation of the Seventh Amendment, alleged infringers should be able to assert their right to a jury trial, both as defendants in counterclaims and as plaintiffs in declaratory judgments.

Diversity in higher education has many positive implications for both minority and nonminority students alike. Unfortunately, the equal protection clause has been a barrier to many state policies that have sought to enhance diversity in higher education. While the Supreme Court has struck down facially discriminatory affirmative action plans under a standard of strict scrutiny, it is possible that there will be a shift in jurisprudence that allows facially neutral admissions policies to pass constitutional muster. Many states, Texas specifically, have instituted “percentage plans,” which are facially nondis-criminatory policies that aim to increase diversity in higher education by automatically admitting a certain percentage of top students from every high school to a state university. This Note analyzes these percentage plans and discusses whether a potential shift in the Supreme Court’s jurisprudence will allow facially neutral admissions policies to prevail under a strict scrutiny standard. Additionally, this Note recommends that facially neutral admissions policies should be analyzed under a standard of intermediate scrutiny in order to facilitate the goal of diversity in higher education.