• Regulation by Software

      Grimmelmann, James (2005-01-01)
      Six years ago, Lawrence Lessig had two insights. First, code regulates. Computer software (“code”) can constrain behavior as effectively as law can. Second, code is like physical architecture. When software regulates behavior online, it does so in a manner similar to the way that physical architecture regulates behavior in the real world.3 His catchphrase—“code is law”—is shorthand for the subtler idea that code does the work of law, but does it in an architectural way. With this one phrase and two ideas, he opened up an entire line of study: how regulating through software rather than through law changes the character of regulation. Unfortunately, that line of study has been stunted, and in a sense, it is Lessig’s fault—for having three insights, instead of stopping with two. In the book that made “code is law” famous, Code and Other Laws of Cyberspace, Lessig also argued that software itself can be effectively regulated by major social institutions, such as businesses or governments. He then completed the syllogism. If other institutions can regulate software, and software can regulate individual behavior, then software provides these institutions an effective way to shape the conduct of individuals.
    • EQUALIZING PREGNANCY: The Birth of a Super-Statute

      Schwartz, Kevin (2005-05-07)
      Sherry O’Steen was caught in a constitutional transition. Abandoned by her husband during her unexpected pregnancy, O’Steen depended on her income from work on an assembly line at the local General Electric (G.E.) factory. But her livelihood was cut off when she was forced by G.E. into unpaid sick leave for the remainder of her pregnancy. “I didn’t tell nobody at work until I started showing,” O’Steen recalls, “but one day my boss came and told me ‘You’re too big now, you’re going to have go.’” Stripped of her wages and denied temporary disability benefits from G.E., O’Steen could not afford electricity, oil for heating, or sufficient food during her pregnancy as she cared for her two-year-old daughter alone. G.E. had guaranteed employees insurance and leave benefits for temporary disabilities arising for any reason—from vasectomies to hair transplants—but the sole exception was pregnancy. According to the Supreme Court, pregnancy discrimination remains constitutional today. In a 1974 decision never revisited by the Court, the majority validated pregnancy discrimination as constitutional under the Equal Protection Clause: “While it is true that only women can become pregnant it does not follow that every legislative classification concerning pregnancy is a sex-based classification. . . . Lawmakers are constitutionally free to include or exclude pregnancy from the coverage of legislation.” The Court applied precisely this narrow conception of sex discrimination to the private sector as well, rejecting O’Steen’s claim that pregnancy discrimination was sex-based in violation of Title VII of the Civil Rights Act. Yet today, the right of women to be free from sex discrimination on the basis of pregnancy is foundational in American society, binding private actors, legislatures, agencies, and courts alike. We can locate such a foundational right not in the judiciallyarticulated Constitution, but instead in the constitutional norms of what William Eskridge and John Ferejohn have called a “super-statute.” This Paper explicates the penetration into American public law of a new equality norm that redefined the meaning of sex discrimination in two critical ways in the face of stereotypes attached to real biological differences. First, setting aside their different views about the best way to secure workplace equality, previously divided legal feminists united to condemn as facial sex discrimination the “whipsaw effect” of pregnancy-based exclusions: On the one hand, women like Sherry O’Steen were forced into unpaid leave or fired based on a presumption of disability due to pregnancy, regardless of their capacity to work; on the other hand, women were unequally penalized for this absence by loss of the seniority, sick leave, and medical insurance that all other temporarily disabled workers received. This essential premise unified legal feminists in opposition to the Supreme Court insistence that “pregnancy . . . is not a gender-based discrimination at all.” Additionally, on the foundation of this feminist consensus that pregnancy discrimination is sex discrimination, an intensive normative debate took place within the legal feminist community and other organizations about the proper conceptual framework for targeting the discrimination. This second question in defining the modern equality norm was whether sex equality in the workplace should be delivered through special treatment for pregnant workers or through equal treatment for all workers experiencing temporary disabilities for any reason. While a six-man majority on the Supreme Court refused even to view this classification as sex discrimination at all, this Paper shows how liberal and labor feminists, unions, pro-choice and pro-life organizations united to repudiate the Supreme Court by generating a new normative baseline for modern equality jurisprudence that declares unlawful the whipsaw of pregnancy discrimination and that extinguishes facial exclusionary policies through an equal-treatment framework.
    • Beyond Lawrence: Metaprivacy and Punishment

      Greene, Jamal (2005-09-01)
      Can the State kill someone for being a bad person? Consider the following Connecticut case: In 1997, Todd Rizzo, then eighteen years old, invited thirteen-year-old Stanley Edwards into his backyard, telling him that they would be hunting snakes. Once there, Rizzo straddled Edwards, in Rizzo's words, "like a horse," and struck him thirteen times with a sledgehammer as the boy pleaded for his life. He dumped the dead body in the woods nearby. Rizzo's motive? While stationed in Hawaii less than a year before the murder, the members of Rizzo's Marine platoon had been asked to list their ten goals in life. The second goal on Rizzo's list was "to kill a man." An avid student of past serial killings, Rizzo told police after he was taken into custody that he had bludgeoned Edwards to death because he wanted to see what it felt like. He pleaded guilty to capital murder and was sentenced to death in August 1999.
    • A New Ideal for Government in Malory’s Morte Darthur

      Goldblatt, Dana (2005-09-01)
      This is a paper about the ideal of government expressed in Sir Thomas Malory’s fifteenth-century Morte Darthur, but it is also a paper about the relationship of laws to stories, and both to history. In Malory’s vision of the founding of the Round Table, King Arthur’s knights shed personal histories, family ties, even their memories of the functions of chivalry and knighthood. In place of traditional norms, emotional bonds, and personal histories, they substitute a code that, while it produces behaviors identical in many respects those that the traditional norms would have produced, imagines for itself a new origin in Merlin’s magical interventions. Thus redefined, honor becomes about righting all wrongs and eradicating all potential injustices, not just injustices that impinge upon friends and family. The objects of the adventures are not previously associated with the knights in any way and are in many ways irrelevant to the honor-seeking project itself. The Knights of the Round Table serve an ideal of honor that is basically impersonal – the same for every knight in every situation. The fellowship is united not by blood but by excellence.
    • Targeting Tehran: Assessing the Lawfulness of Preemptive Strikes Against Nuclear Facilities

      Eichensehr, Kristen (2006-11-22)
      In 1981, Israel launched a preemptive attack on the Iraqi Osiraq nuclear reactor. Now a similar strike is being considered against Iranian nuclear facilities. This article assesses the lawfulness of preemptive strikes generally and a preemptive strike against Iran specifically, focusing on the new threat posed by terrorists’ potential acquisition of nuclear material for a “dirty bomb.” The article begins by evaluating preemptive strikes on nuclear facilities against the criteria for self-defense—necessity, immediacy, and proportionality—and then turns to broader criteria for “lawfulness,” such as environmental damage and harm to the legal rules governing the use of force. After developing criteria to evaluate the lawfulness of a preemptive strike, the article concludes that a preemptive strike against Iran at this point would not satisfy the outlined criteria and thus would be unlawful.
    • Property Without Possession: Defining Private Instream Rights in Western Water Law

      Johnson, Nicole (2007-01-11)
      Since the early 1970s most western states have made a concerted effort to either maintain or augment the quantities of water flowing in their rivers and streams. Environmental interest groups, recreation industries, and those with aesthetic or other interests in increasing the amount of water in these natural channels have provided widespread support for these efforts, yet there has been little success in impacting instream flows in any material way. A promising solution is the privatization of rights to instream flows, such that private entities or individuals could purchase and enforce instream water rights; and instream uses of water could compete in the market for water against traditional consumptive uses. However, attempts by states to implement privately held instream rights have also been unsuccessful thus far. In this paper, I propose that the definition of water rights established by the early western settlers in the mid-nineteenth century is a primary reason for the present day inefficiency and inability to accommodate private ownership of non-consumptive uses of water.
    • Making Sense of “Moral Rights”: Artists’ European-style Intellectual Property Protections Within the American System

      Lee, Brian (2007-04-22)
      American intellectual property law, the conventional story tells us, essentially springs from economic concerns about encouraging the production and dissemination of valuable non-tangible goods. The United States Constitution’s explicit grant of power to Congress to regulate intellectual property is couched in those very terms: “The Congress shall have Power . . . To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
    • The Case for Tax Credits

      Jenn, Brian (2007-05-03)
      Despite perennial calls from politicians, policy analysts, and populists for a major individual income tax overhaul that would cleanse the tax system by eliminating its eclectic collection of tax incentives and preferences, the ideal of tax base purity has yet to be realized and seems unlikely to find its way to fruition in the foreseeable future. Middle-class Americans appear to be simply too fond of their tax preferences for expenses such as home mortgage interest, health insurance, and charitable contributions to let go, as evidenced by the reluctance of savvy politicians to put forward a serious reform package that eliminates those tax benefits. For the 2007 fiscal year, the largest 25 tax expenditures reported in the President’s Budget were expected to have a total value of over $750 billion in terms of foregone revenue. By comparison, the entire amount of revenue raised by the federal individual income tax during the same period was only $1.096 trillion, meaning that total revenue would be over 70 percent higher without these tax preferences if current tax rates were unchanged.
    • POLITICAL GERRYMANDERING AND ELECTORAL ACCOUNTABILITY

      Khoo, Michael (2007-05-22)
      Standard theories borrowed from political science and economics shed new light on the perceived harms of political gerrymandering and cast doubt on whether self-interested district line-drawing can systematically distort the will of the voters. A detailed theory of voting and representation indicates that elections provide a robust system of accountability. Moreover, the internal logic of this system appears to be immune to political gerrymandering. A brief, initial foray into data on elections and representation from the 91st to the 109th Congresses provides tentative support for this hypothesis, although the analysis is admittedly inconclusive. The results are tantalizing enough, however, to motivate further and more sophisticated efforts to test the theory.
    • Coercion, Immigration and the Grounds of Distributive Justice

      Lindsay, Ira (2007-07-01)
      A recent argument for restricting the scope of distributive justice to arrangements within national boundaries suggests that coercive enforcement of entitlements through the private law is what gives rise to duties of distributive justice. This argument has been advanced in the most detail by Michael Blake and has also been endorsed by Mathias Risse. I will argue that this argument is mistaken. Duties of distributive justice are grounded in something else: perhaps in the imposition of a basic structure that fixes the terms of cooperation or perhaps in norms of reciprocity arising from cooperation. In either case, I believe that the grounds of distributive justice strongly suggest that considerations of distributive justice apply at both the national and international level. I conclude by suggesting a different way to explain why certain redistributive schemes are required on the national but not international level without denying that increased transnational cooperation makes global distributive justice an increasingly salient issue.
    • Contracting for Financial Privacy: The Rights of Banks and Customers Under the Reauthorized Patriot Act

      Prabhu, Aditi (2007-11-10)
      The 2001 Patriot Act chipped away financial privacy protections by allowing law enforcement authorities easier access to bank customer records. Under the Patriot Act, federal authorities may access customer records by issuing formal subpoena-like requests under the Foreign Intelligence Surveillance Act (FISA) or informal national security letters (NSLs) to banks while prohibiting notice to any affected customers. However, the 2006 revisions to the Patriot Act permit banks to challenge FISA requests and NSLs in federal court before releasing customer records. While the Act does not require banks to make these challenges on behalf of their customers, this Paper will argue that the contracts banks sign with their customers – interpreted in light of the banking tradition of confidentiality and the current regime of federal and state privacy protections – obligate banks to review government requests for customer records and file challenges when appropriate. Furthermore, I will argue that banks and customers should be able to enter into contracts explicitly obligating banks to challenge FISA requests and NSLs, and that such contracts would be enforceable and financially feasible.
    • A Question of Rank

      Ehrenberg, Shuky (2007-11-11)
      U.S. News and World Report rankings have long been a part of the law school application process, with school rank often playing an important role in a prospective student’s decisions. This Paper addresses the question of whether law schools act strategically in order to maximize their U.S. News and World Report ranking, with a focus on the admissions process. The Paper will show that some law schools admit students in order to maximize their ranking, as opposed to admitting students expected to succeed in law school. The Paper will also include a more general discussion of U.S. News’s ranking methodology, and possible implications to affirmative action and minority admissions in law schools.
    • TIERED CONSENT AND THE TYRANNY OF CHOICE

      Ram, Natalie (2007-11-11)
      Regulations and doctrine governing human tissue research are facing immense pressure to ensure respect for the interests of tissue providers and of researchers. Tiered consent presents tissue providers with a menu of research categories to which they may consent, and it is a recognized best practice. Yet, evidence in consumer psychology suggests that abundant choice causes decision-makers to experience information overload, make arbitrary choices, refrain from choosing altogether, and experience regret following decision-making. These patterns result in systematically lower quality decision-making. This Essay fleshes out the potential limitations of expanded choice in tiered consent situations so that use of this best practice, and the laws and doctrine governing it, best approaches the ethical paradigm of informed consent.