Volume 78, Number 5

November 2003

The Objectivity of Well-Being and the Objectives of Property Law

Daphna Lewinsohn-Zamir

Assuming that the enhancement of people’s well-being is a worthy goal for the state to pursue, the question of what well-being consists of arises. This fundamental question has been debated extensively by philosophers, but it is mostly ignored in the legal literature, mainly due to the dominance of the economic-analysis-of-law movement in legal scholarship. The shortcoming of the efficiency analysis is that it primarily focuses on satisfaction of preferences, while disregarding other possible criteria of welfare. Thus, if the preferences considered are people’s actual, subjective ones, then whenever a person’s desires are based on misinformation, prejudice, or lack of self-esteem, the fulfillment of these preferences might result in a reduction-rather than advancement-of that person’s welfare. This Article argues in favor of an objective approach to welfare.

According to an objective approach, certain things, such as knowledge of ourselves and the world around us, accomplishment of worthwhile goals, and attainment of deep and meaningful relationships, are intrinsically valuable, notwithstanding one’s preferences. The Article shows that an objective theory need not be rigid or elitist, and can be sufficiently flexible to respect people’s autonomy and allow many paths to achieving a good life. It further demonstrates that the obvious attractions of preference theories-their antipaternalistic flavor and practical simplicity-are misleading. In fact, objectivity cannot be avoided even in seemingly subjective theories of well-being. The Article explains the importance and normative implications of an objective theory of well-being for legal theory and develops an objective approach to property law. Objective standards justify certain requirements of property law, in terms of both quantity and quality. These requirements are manifest in existing legal rules, such as property exemptions in bankruptcy, the numerus clausus principle, and restrictions on owners’ power to control property after death.

Cybercrime’s Scope: Interpreting “Access” and “Authorization” in Computer Misuse Statutes

Orin S. Kerr

The federal government, all fifty states, and dozens of foreign countries have enacted computer crime statutes that prohibit “unauthorized access” to computers. No one knows what it means to “access” a computer, however, or when access becomes “unauthorized.” The few courts that have construed these terms have offered widely varying interpretations. Several recent decisions suggest that any breach of contract renders an access unauthorized, broadly criminalizing contract law on the Internet. In this Article, Professor Orin Kerr explains the origins of unauthorized access statutes, and examines why the early beliefs that such statutes articulated a clear standard have proven remarkably naive. He then shows how and why the courts have construed these statutes in an overly broad manner that threatens to criminalize a surprising range of innocuous conduct involving computers. Finally, Professor Kerr offers a normative proposal for interpreting “access” and “authorization.” Courts should reject a contract-based theory of authorization, and should limit the scope of unauthorized access statutes to circumvention of code-based restrictions on computer privileges. This proposed interpretation best mediates between securing privacy and protecting the liberty interests of Internet users. It also mirrors criminal law’s traditional treatment of consent defenses, and avoids possible constitutional difficulties that may arise under the broader constructions that courts have recently favored.


Modeling the Effect of One-Way Fee Shifting on Discovery Abuse in Private Antitrust Litigation

William H. Wagener

Private antitrust litigation has been encouraged by the grant of attorney’s fees and treble damage awards to successful antitrust plaintiffs, but such pro-plaintiff provisions can prove to be costly because of the potential for abuse that these provisions create. In this Note, William H. Wagener focuses on the particular effects of granting an award of attorney’s fees to successful plaintiffs, also known as “one-way fee shifting.” Relying on modern economic analysis of litigation, he argues that the existence of one-way fee shifting in private antitrust litigation often eliminates a defendant’s ability to retaliate to overbroad and burdensome discovery requests by an antitrust plaintiff. Fee shifting, along with substantial increases in discovery costs and weak judicial safeguards against discovery abuse, creates a structure under which an opportunistic plaintiff can extract sizable settlements far greater than the expected award at verdict, regardless of the strength of the plaintiffs antitrust claim. Wagener argues that while promoting private enforcement of antitrust law is desirable, some reforms may be needed to deter such abuses in antitrust litigation. He concludes that nuisance litigation can be significantly reduced without unduly prejudicing legitimate antitrust claims through either eliminating or modifying the fee-shifting provisions in private antitrust litigation, or by instituting higher pleading standards for antitrust lawsuits than what the rules of civil procedure currently provide.

The Uplifted Knife: Morality, Justification, and the Choice-of-Evils Doctrine

Adav Noti

The general justification defense, also known as the choice-of-evils doctrine, permits a criminal defendant to seek acquittal on the grounds that his crimes were necessary to prevent greater harm from occurring. In this Note, Adav Noti examines the moral theories that have been advanced to support this defense and argues that only one such theory, which he labels the “uplifted knife,” is truly congruent with the justification defense itself The uplifted knife theory stands for the proposition that it is immoral for the state to punish a defendant whose actions during an emergency situation could not have been impacted by the threat of legal sanctions. The Note shows that applying the uplifted knife theory to otherwise difficult justification cases would improve the courts’ ability to determine which defendants were actually deserving of acquittal. Thus, the Note proposes amendments to the justification statutes that would bring the statutory text more in line with its moral underpinnings.

Racialized Memory and Reliability: Due Process Applied to Cross-Racial Eyewitness Identifications

Radha Natarajan

Currently, defendants accused of a crime based on a cross-racial eyewitness identification are not afforded due process under the United States Constitution. In Manson v. Brathwaite, the Supreme Court developed a test to govern admissibility standards for eyewitness identification evidence. The test relies on the assumption that erroneous convictions occur mainly because police obtain identifications through procedures that improperly suggest whom the eyewitness should choose. While this assumption may be true for same-race identification, cross-racial identifications present a further problem. Scientists agree that people are far better at recognizing members of their own race than they are at recognizing members of another race and that this own-race bias causes mistaken identifications. In fact, according to studies, a Black innocent suspect has a 56% greater chance of being misidentified as the perpetrator by a White eyewitness than a Black eyewitness, even without suggestiveness. In order to ensure compliance with the Due Process Clause in cases involving cross-racial identifications, a new admissibility test must account for the racialized nature of memory. In this Note, Radha Natarajan develops an alternative test for cross-racial eyewitness identification evidence that is consistent with constitutional guarantees and scientific reality.

Fortress of Solitude or Lair of Malevolence? Rethinking the Desirability of Bright-Line Protection of the Home

Lee C. Milstein

Fourth Amendment jurisprudence currently affords the home great protection against searches by law enforcement; since its decision in Kyllo v. United States, the Supreme Court has even protected the home from non-invasive scans. In this Note, Lee C. Milstein argues that focusing on the location of the search or scan rather than on the nature of the activity has a perverse effect on the protection of privacy interests. Scanning technologies that alert only to the presence of contraband or illegal activities, for example, could prevent the need for traditional searches of homes that incur substantial collateral damage to an individual’s privacy rights. At the same time, the focus on the home allows law enforcement virtually unfettered powers of surveillance in public, which can give law enforcement officers significant amounts of information about an individual. Milstein concludes by proposing a new approach to Fourth Amendment jurisprudence that would permit the use of highly particularized scanning technologies for law enforcement and by exploring the potential for the development of new technologies that would minimize invasions of privacy while making the enforcement of the criminal law more effective under this alternate approach.

Filling the Gaps: A Principled Approach to Antitrust Enforcement Provides a Necessary Complement to the Telecommunications Act of 1996

Daniel L. Cendan

The Telecommunications Act of 1996 (TCA or 1996 Act) aims to secure lower prices and higher quality services for consumers through vigorous competition among telecommunications carriers. Yet consumers have not enjoyed such results, in part due to carriers’ noncompliance with the 1996 Act. Regrettably, statutory gaps in the rules for remedying violations of the TCA have left consumers largely without recourse. In this Note, Daniel L. Cendan responds to the shortcomings of the TCA by discussing a circuit split that the Supreme Court will resolve this October 2003 term in Law Offices of Curtis V. Trinko, L.L.P. v. Bell Atlantic Corp. Cendan concludes that the Court should affirm Trinko’s holding that a complaint alleging sustained anticompetitive conduct-grounded in behavior that may be distinctly categorized as a violation of the 1996 Act-states a cause of action for exclusionary conduct that violates Section 2 of the Sherman Act. Cendan proposes that the antitrust laws, by shoring up the TCA’s weaknesses, provide a necessary complement to the TCA. Because not every violation of the TCA is a violation of the antitrust laws, a principled approach to antitrust enforcement should permit those complaints pleading a sustained course of anticompetitive conduct-under either a “refusal to deal” or “essential facilities” theory of liability-to survive a motion to dismiss for failure to state an antitrust claim; in contrast, courts should dismiss complaints that allege violations of the antitrust laws for mere isolated conduct that may have harmed competitors. Cendan concludes that whereas the TCA has failed to rigorously enforce consumer rights, the antitrust laws will provide fundamental consumer protection, both in acting as a deterrent to anticompetitive behavior and in providing remedies that are unavailable under the 1996 Act.


Uncommon Humanity: Reflections on Judging in a Post-Human Era

Jeffrey L. Amestoy

In this speech delivered for the annual Justice William J. Brennan, Jr. Lecture on State Courts and Social Justice, Vermont Supreme Court Chief Justice Jeffrey Amestoy uses the recent landmark Vermont decision of Baker v. Baker—the “same-sex marriage” case—as an occasion for deeper reflection on what it means to be human. In this “post-human” era—an era in which genetic manipulation, artificial intelligence, and cloning alter the human entity itself courts face unprecedented legal issues. Judges, as well as the rest of us, increasingly are forced to consider what to protect from such biotechnological advances, and where to draw lines among humans, animals, and chimera. The Chief Justice cautions that judges should not do so without consideration of what makes us human. This will require judges not to define humanity, but to describe and recognize it with, as Justice William Brennan urged, an awareness of the range of human experience. By imagining humanity—not through reason alone, but in a way that the heart can recognize—judges will be a humanizing counterweight in the legal challenges that lie ahead.