According to the managerial strategy literature, a, if not the, key to large profits is the creation of “moats” that protect firms from competition. Firms with market power create moats to maintain that power, and there exist strong incentives to develop new technologies that allow for broader and deeper moats. On the other hand, from a broader societal perspective, and particularly from the perspective of consumers, these moats often are harmful: they surround customers and deny them the opportunity to purchase from competitors. As a result, consumers suffer from the high prices and/or low quality imposed by the incumbent firm, whose incentives to provide the amount and type of innovation desired by consumers are decreased.

Consumer-protection law is vital for ensuring that market-based economies work in the economic interest of consumers as well as businesses, and thus to the benefit of society as a whole. This is well understood. Caveat emptor—“let the buyer beware”—may have made sense as the default risk allocation between buyer and seller in the village marketplaces of yore, in which transactions were relatively small, and buyers and sellers were likely to know and expect future dealings with each other. These features would naturally encourage traders to comply with community-generated and community-enforced norms of commercial fair dealing.1 In these admittedly idealized markets, sellers who cheated would quickly be found out, and they would face high social and economic costs, in contrast to the social and economic costs sellers face in modern markets, where traders are more likely to be strangers engaged in one-off transactions. The idealized markets of yore also dealt mostly in physical goods, which allowed buyers the opportunity to examine the goods before purchase. Modern markets, especially online markets, differ from the idealized village marketplace in significant ways. The scope and scale of most contemporary online markets, for example, make it unrealistic to hope that relational obligations or a shared sense of morality could fully counterbalance incentives to cheat.

A speech is presented by Stephen B. Bright The Richard J. Childress Memorial Lecture 2016 . Topics discussed include problem of poverty in our court system; issues of poor people with urgent, unmet legal needs who lack access to the courts and have no ability to even confer with a lawyer about their legal problems; and the issues of poor people accused of crime.

Representation of poor people accused of crimes must be independent of the judiciary if criminal proceedings are to be fair and reliable. Independence is the first of the American Bar Association's Ten Principles of a Public Defense Delivery System (2002). Independence allows judges and defense counsel to perform their very different roles within the adversary system. Inadequate representation of the accused by court-appointed lawyers has contributed to 127 executions of people sentenced to death in Harris County--more executions in the last 40 years than any state except Texas itself. Some lawyers have lacked the qualifications to handle capital cases. The Texas Court of Criminal Appeals rejected a challenge on behalf of Anthony Graves to the inadequate pleadings filed by the inexperienced lawyer it provided him for state habeas corpus proceedings. Different counsel established a constitutional violation in federal habeas corpus review and Graves was later exonerated. He is one of 12 men sentenced to death in Texas who were later exonerated. But others sentenced to death have had no review of their cases by the federal courts because the lawyers appointed to represent them missed the statute of limitations for filing a petition for federal habeas corpus. There have been other egregious instances of malpractice such as lawyers sleeping during death penalty trials, filing briefs that were incomprehensible or did not apply to the case in which they were submitted, and abandoning clients and turning against them. Neither judges nor the Texas Bar have taken action to prevent such malpractice from occurring again. Judges have continued to appoint those lawyers to represent defendants and the Bar has taken no disciplinary action. The Texas Court of Criminal Appeals has sanctioned lawyers for failing to file pleadings a full seven days before an execution but has not punished those who slept during trials or those who submitted incomprehensible or irrelevant briefs--the convictions and death sentences were upheld in those cases. The defense of capital and other criminal cases requires training, experience, expertise in a number of subjects, and the support of investigators, social workers and experts. Public defender offices and capital habeas units all over the country provide representation by lawyers who specialize and are trained and supervised. Two capital habeas units opened at federal public defender offices in Texas in 2017, over 20 years after such offices were established in other federal districts in other parts of the country. The units and other offices, such as the Office of Capital and Forensic Writs and the Regional Public Defender for Capital Cases are positive developments that will significantly improve representation. Members of the Bar have a responsibility to provide access to justice that includes providing competent counsel in criminal cases.

The following pages contain excerpts from recent panel discussions held at The American University, Washington College of Law, sponsored by the Criminal Law Society (CLS). The theme of each event was the death penalty in the twenty-first century. As such a passionate and complex issue often does, the death penalty inevitably creates controversy. Through these panel discussions, CLS aimed to create a forum for an intellectual discussion about the facts and the impact of modem death penalty jurisprudence in the United States.

Capital punishment is a difficult and sensitive topic because it involves terrible tragedies, the murder of innocent people, loss and suffering, and the passions of the moment. It is used in only a very small percentage of cases in which it could be imposed and is currently in decline. Six states have recently abandoned it, and the number of death sentences imposed in the country decreased from over 300 per year in the mid-1990s to less than eighty in the last several years. And so it is appropriate for us to ask whether death remains an appropriate punishment in a modern society, whether it is fairly carried out without race and poverty influencing who dies, and whether it is imposed only upon the most incorrigible offenders who commit the most heinous crimes.

What shapes judicial temperament? What hones judicial style? Seeing as judges are grown in neither a hothouse nor a test tube, presumably they attain their temperament and style much the same way as the rest of us—which is how, exactly? Do we soak up influences like sponges? Or do we spring forth like Athena, our outlook and predilections mostly formed, and find in outside influences that which we want to see? I am not qualified to answer these questions, about either judges or people in general, yet they are the questions that Bernadette Meyler’s lovely piece on Cardozo’s Literary Precedents prompts for me. I will suggest here that Meyler’s piece identifies and rejects some bad answers to these questions and also hints at some more intriguing possibilities.

Benjamin Cardozo penned his essay “Law and Literature” long before the field of law and literature took off in the 1970s.1 The piece, which furnishes a typology of judicial styles, has become a classic early example of engagement with the intersection of the two areas.2 “Law and Literature” fits squarely within what is now called the genre of “law as literature,” considering the literary attributes of legal writing.3 Reading it, one might never imagine that Cardozo had also considered works of fiction in depth. Indeed, few know of his early study of literature, including his heretofore unpublished undergraduate paper on novelist George Eliot.4 Although this earlier work does not touch on law explicitly, it demonstrates the emergence of Cardozo’s concerns with duty, causation, and responsibility even before he became a judge, presaging the account of morality furnished in The Nature of the Judicial Process. It also helps to flesh out the reasons why, as he claims in “Law and Literature,” style is so significant.

Benjamin Cardozo is associated with the common law, equity, judicial decision-making, and with a characteristic kind of proto-Realism. And in his day he was the most prominent expositor of the law of New York, a jurisdiction that had led the way in the merger of law and equity. So it is with equity. Equity pervades Cardozo’s work as a theme of the law and as a problem in judicial theory, in both his theoretical writings and in his decisions. In The Nature of the Judicial Process, Cardozo invokes equity when introducing the problem of reconciling the need for both certainty and flexibility in the law. And equity plays a large role in the modes of judicial decision-making he identifies—the philosophical, the historical, the customary, and the policy-oriented. This last, or sociological, method is the “arbiter” of the others in a way suggestive of equity’s role as meta-law. Because this approach to equity could only emerge from its application, it is not surprising that cases in the area of equity would receive his special attention as a judge. Most clearly in some headline equity cases but going far beyond them, Cardozo’s vision for the integration of equity and law was functional rather than primarily jurisdictional. Equity for Cardozo both kept the law to a high moral standard and supplemented and corrected the law in limited circumstances. Sometimes Cardozo’s reformulation of equity in this functional sense reformed the law so subtly as to be easy to miss. Seen in the light of later full-blown Legal Realism, Cardozo’s equity is easily mistaken for a version of Realism in its rhetoric but disappointingly cautious in its results. Cardozo’s equity was a genuine path not taken and one that perhaps still could bring equity into the modern age.