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Professor Duncan Hollis discusses the relationship between foreign-state agreements (FSAs) and the Constitution’s Compact Clause. The Compact Clause plainly prohibits states from entering “into any Agreement or Compact with another State, or with a foreign Power” absent congressional consent. Nevertheless, states have entered into hundreds of such FSAs over the years. Professor Hollis explores the reasons underlying this contradiction and argues that the federal government should exercise more oversight over FSAs.
The Supreme Court has interpreted the interstate-agreement portion of the Compact Clause loosely, allowing states to enter into a number of agreements without congressional approval. A similarly lax standard has been applied to FSAs, although no authority has addressed whether such treatment is appropriate. Professor Hollis suggests that the Constitution actually contains two Compact Clauses: one for interstate agreements and one for FSAs. Functionally, distinct justifications exist for foreign and interstate compacts that, in turn, support differing treatment. Accordingly, Professor Hollis concludes that substantial arguments exist for subjecting FSAs to supervision by the federal political branches.
Professor N.W. Barber reviews Cass Sunstein’s A Constitution of Many Minds: Why the Founding Document Doesn’t Mean What it Meant Before and Adrian Vermeule’s Law and the Limits of Reason.
Both Sunstein and Vermeule consider claims that the public as a whole and the judiciary, when treated collectively, might constitute groups whose decisions about facts will be more reliable than decisions made by individuals. Professor Barber analyzes this claim, drawing on the authors’ fascinating studies of the advantages and dangers of collective decision making.
This Book Review Note reviews The Rule of Recognition and the U.S. Constitution, edited by Matthew Adler and Kenneth Einar Himma.
This review focuses on two of the book’s chapters: Mitchell Berman’s Constitutional Theory and the Rule of Recognition: Toward a Fourth Theory of Law and Matthew Adler’s Social Facts, Constitutional Interpretation, and the Rule of Recognition. Both of these pieces find flaws in Hart’s legal positivism—they claim that the rule of recognition framework cannot account for features of U.S. constitutional theory. This Note argues that the Hartian positivist can respond to both Berman’s and Adler’s complaints about the Hartian rule of recognition framework. However, the reviewer concludes that there is a common lesson to be learned in Berman’s and Adler’s challenges: the rule of recognition framework accommodates more analogical and inductive reasoning than Berman and Adler recognize, and understanding this may show that Hartian positivism is more broadly applicable as a theory of general jurisprudence than it is credited for.
In this Note, Little addresses the choice of law problem that arises in determining which jurisdiction’s ethics rules govern the conduct of lawyers in multijurisdictional legal transactions. He initially criticizes the existing choice of law regime for ethics proceedings, arguing that the current patchwork of each state’s varying choice of law rules is inadequate. In place of this broken regime, Little advocates for allowing lawyers and their clients to use choice of rules clauses to specify which state’s ethics rules will govern their legal transaction.
In this Note, McLain explores the use of the perjury-trap defense in criminal prosecutions. Courts and commentators have defined the perjury-trap defense as deriving from either a due process or Fifth Amendment right. Additionally, the defense has been raised in several criminal prosecutions. However, immaterial testimony is a necessary element of the perjury trap but does not constitute perjury, making the perjury-trap defense superfluous. Accordingly, McLain argues that defense counsel should never raise the perjury-trap defense.
In this Note, Sivinski discusses multifetal pregnancies caused by in vitro fertilization (IVF). The American Society for Reproductive Medicine has promulgated voluntary guidelines suggesting how many embryos should be used based on the age of the female patient and other factors. While some commentators have called for state or national legislation enforcing mandatory limitations, Sivinski suggests an alternative, nonlegislative approach. Specifically, she suggests providing patients with better information about the risks of multifetal pregnancies, improving insurance coverage for IVF patients, and implementing the BESST (birth emphasizing successful singleton at term) standard for publication of clinic success rates.
Over the last several decades, some scholars have argued that rulemaking by unelected agency officials imperils popular sovereignty. The conventional wisdom is that federal law should resolve this problem by allowing the President to serve as a proxy for the “will of the people” in administrative rulemaking. However, Professor Criddle suggests that a better solution for promoting popular representation in agency rulemaking is to extend private fiduciary duties to administrative agencies.
Professor Criddle begins by accepting the premise that federal agency rulemaking often diverges from the will of the electorate. However, he rejects the notion that this inconsistency can be eliminated by equating the President’s preferences on questions of regulatory policy with the will of the people. Empirical evidence has shown that presidents do not necessarily pursue administrative policies that are consistent with the views of the electorate. Indeed, the notion that presidents might serve as reliable proxies for majoritarian preferences in agency rulemaking becomes indefensible once one acknowledges how little the public knows about agency rulemaking.
As an alternative to the presidential proxy argument, Professor Criddle proposes the adoption of a fiduciary model of popular representation. Like fiduciaries in private law, all federal officers exercise discretionary administrative authority for the benefit of those subject to their power, and all are bound by duties of purposefulness, fairness, integrity, solicitude, reasonableness, and transparency. Rather than focus on a representative’s obedience to the public will, fiduciary representation emphasizes agencies’ responsibilities to act deliberatively and reasonably in promoting the public welfare.
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In this Article, Professor Golden examines the debate about what the value of patent remedies generally is or should be. This public debate has become relatively heated in light of recent Supreme Court jurisprudence that may decrease the availability of injunctions forbidding continued infringement. Professor Golden concludes that policy making in this area should take guidance from specific principles of adaptation and implementation.
The 2006 decision of the U.S. Supreme Court in eBay Inc. v. MercExchange, L.L.C. has spawned conflicting answers from lower courts and academic commentators regarding how to decide when injunctions should issue. At the same time, Capitol Hill entities representing a variety of industry heavyweights have poured millions into lobbying for or against patent reform bills. Amidst all the resulting commotion, one fact seems clear. We really have little specific sense of what the value of remedies for patent infringement generally is or should be. Indeed, with a patentee’s ability to invoke the leverage of an injunction cast into doubt by the eBay case, the hunt for a satisfactory remedial system is likely to be a long one.
How then should we determine patent remedies’ proper nature and scope? Professor Golden argues that policy making should take guidance from three principles of adaptation and two principles of implementation: (1) nonabsolutism in the formulation and application of legal doctrine; (2) antidiscrimination with respect to business models; (3) learning, an interest in fostering the production of useful information; (4) administrability; and (5) devolution of significant decisional responsibility to private or government actors nearest to the facts of an individual case. Although these principles do not uniquely determine any single best system of patent remedies, they provide a framework for assessing the relative merits of policy proposals and for suggesting ways in which proposals can be improved. In particular, the principles have implications for current debates regarding the availability of permanent injunctions, the calculation of reasonable-royalty damages, and the possibility of remedial exemptions for prior users or independent creators.
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