Volume 79, Number 1

April 2004

Environmental Protection in the Information Age

Daniel C. Esty

Information gaps and uncertainties lie at the heart of many persistent pollution and natural resource management problems. This article develops a taxonomy of these gaps and argues that the emerging technologies of the Information Age will create new gap-filling options and thus expand the range of environmental protection strategies. Remote sensing technologies, modern telecommunications systems, the Internet, and computers all promise to make it much easier to identify harms, track pollution flows and resource consumption, and measure the resulting impacts. These developments will make possible a new structure of institutional responses to environmental problems including a more robust market in environmental property rights, expanded use of economic incentives and market-based regulatory strategies, improved command-and-control regulation, and redefined social norms of environmental stewardship. Likewise, the degree to which policies are designed to promote information generation will determine whether and how quickly new institutional approaches emerge. While some potential downsides to Information Age environmental protection remain, the promise of a more refined, individually tailored, and precise approach to pollution control and natural resource management looks to be significant.

Copyright and Product Differentiation

Christopher S. Yoo

Existing economic analyses generally frame copyright as presenting a conflict between promoting efficient levels of access to creative works on the one hand and providing sufficient incentives to support their creation on the other. The supposed irreconcilability of the access-incentives tradeoff has led most scholars to regard copyright as a necessary evil and to advocate limiting copyright protection to the lowest level still sufficient to support creation of the work. In this Article, Professor Christopher Yoo breaks with the conventional wisdom and proposes a new approach to copyright law based on the economics of product differentiation. This differentiated products approach provides an explanation for market features that appear to be internal contradictions under the traditional approach. It also surpasses prior work by providing a basis for formalizing the incentives side of the tradeoff. In so doing, it underscores the importance of an alternative means for promoting access that has largely been ignored in the current literature: facilitating entry by close substitutes for existing works and allowing the ensuing competition to increase access by lowering prices. Focusing on this alternative means for promoting access further demonstrates that the access-incentives tradeoff may not be as intractable as generally believed, since facilitatingentry can promote both considerations simultaneously. The differentiated products approach also assigns the government responsibilities that are better suited to its institutional capabilities than does the traditional approach. Equally importantly, it isolates the impact of three different dimensions of copyright protection, rather than depicting all aspects of copyrightprotectionwith a single variable in the manner of previous analyses. The more nuanced analysis made possible by the differentiated products approach suggests that economic welfare would best be promoted if copyright were strengthened along two of these dimensions and weakened along the third.

Federal Court Abstention and the Hague Child Abduction Convention

Ion Hazzikostas

The Hague Convention on the Civil Aspects of Child Abduction, implemented in the United States through the International Child Abduction Remedies Act, represents a global effort to stem the harmful practice of parents resorting to abduction across national borders to circumvent adverse custody rulings. The Abduction Convention is a mutual agreement to return wrongfully abducted children to their nations of habitual residence for all further custodial proceedings, thereby restoring the status quo prior to the abduction and removing a major incentive for this harmful practice. Congress expressly provided for original and concurrent federal jurisdiction over these petitions for return. In recent years, however, a number of federal district courts have been abstaining from hearing such claims where there is already a custody proceeding ongoing. This practice has the effect of forcing a plaintiff, usually a foreigner, to litigate these sensitive matters in a potentially hostile state forum. In this Note, Ion Hazzikostas argues that district courts have erred in their abstention in most such cases, to the detriment of the same children the Abduction Convention was enacted to protect. A more nuanced standard would better serve the interests of the Convention by removing needless barriers to return, while still limiting the potential for either party to gain an unfair advantage through jurisdictional manipulation.


Digital Speech and Democratic Culture

Jack M. Balkin

A Theory of Freedom of Expression for the Information Society

In this essay, Professor Balkin argues that digital technologies alter the social conditions of speech and thereforeshould change the focus of free speech theory, from a Meiklejohnian or republican concern with protecting democratic process and democratic deliberation, to a larger concern with protecting and promoting a democratic culture. A democratic culture is a culture in which individuals have a fair opportunity to participate in the forms of meaning-making that constitute them as individuals. Democratic culture is about individual liberty as well as collective self-governance; it concerns each individual’s ability to participate in the production and distribution of culture. Balkin argues that Meiklejohn and his followers were influenced by the social conditions of speech produced by the rise of mass media in the twentieth century, in which only a relative few could broadcast to large numbers of people. Republican or progressivist theories of free speech also tend to downplay the importance of nonpolitical expression, popular culture, and individual liberty. The limitations of this approach have become increasingly apparent in the age of the Internet.

By changing the social conditions of speech, digital technologies lead to new social conflicts over the ownership and control of informational capital. The free speech principle is the battleground over many of these conflicts. For example, media companies have interpreted the free speech principle broadly to combat regulation of digital networks and narrowly in order to protect and extend their intellectual property rights. The digital age greatly expands the possibilities for individual participation in the growth and spread of culture, and thus greatly expands the possibilities for the realization of a truly democratic culture. But the same technologies also produce new methods of control that can limit democratic cultural participation. Therefore, free speech values-interactivity, mass participation, and the ability to modify and transform culture-must be protected through technological design and through administrative and legislative regulation of technology, as well as through the more traditional method of judicial creation and recognition of constitutional rights. Increasingly, freedom of speech will depend on the design of the technological infrastructure that supports the system of free expression and secures widespread democratic participation. Institutional limitations of courts will prevent them from reaching the most important questions about how that infrastructure is designed and implemented. Safeguarding freedom of speech will thus increasingly fall to legislatures, administrative agencies, and technologists.

Shaping Community Problem Solving Around Community Knowledge

Gerald P. Lopez

In this Commentary, Professor Gerald P. Lopez explores the origins, ambitions, and challenges of the Neighborhood Legal Needs & Resources Project (NLN&RP) and the role of the NLN&RP in the formation, mission, and future of the recently launched Center for Community Problem Solving at New York University. Informed by the “rebellious vision” of lawyering, the NLN&RP employs sophisticated survey methods and street-level contacts to collect, analyze, and distribute neglected knowledge about the problems faced by, and the problem solvers available to, residents of six New York City neighborhoods. Without drawing regularly upon such knowledge, problem solvers of every sortfall short of what they might achieve and what these low-income, of color, and immigrant communities deserve. For all its imperfections, the NLN&RP demonstrates one important way in which those working across public, private, and civic realms can team up with client communities to shape problem solving around community knowledge.


Judicial Methodology, Southern School Desegregation, and the Rule of Law

The Honorable David S. Tatel

Madison Lecture

Americans have fiercely debated the proper role of Article III courts in our constitutional system ever since Chief Justice John Marshall declared in Marbury v. Madison that it is “emphatically the province and duty of the judicial department to say what the law is.”‘ This debate often has focused on Supreme Court decisions involving some of our nation’s most historic events: the Court’s 1873 evisceration of the Fourteenth Amendment’s Privileges or Immunities Clause, its use of substantive due process to strike down progressive legislation at the turn of the century, its invalidation of key New Deal programs, and its opinion in Roe v. Wade are but a few of the decisions that have reignited the controversy over the meaning and risks of “judicial activism.”


In Defense of Holmes v. Vornado

Ravi V. Sitwala

The jurisdiction of the Court of Appeals for the Federal Circuit is governed by the well-pleaded complaint rule. In Holmes Group, Inc. v. Vornado Air Circulation Systems, Inc., the Supreme Court held that counterclaims-permissive or compulsory-cannot operate to create jurisdiction under the rule. The Holmes decision has been the target of numerous commentators because of its effect on patent law. The crux of the criticism is that the policies supporting the decision only make sense with respect to the well-pleaded complaint rule as applied to federal question jurisdiction. Further, the decision is alleged to promote forum shopping in patent law and threaten the very goals behind the creation of the Federal Circuit. In this Note, Ravi Sitwala rejects the criticism of the Holmes decision. He begins by examining the decision and the policies supposedly contravened by it and then shows that the harm to these policies is overstated greatly. Holmes increases only slightly the ability of litigants to engage in forum shopping,and would allow only a minimal number of patent cases to reach regional circuit courts or state courts. Sitwala goes on to demonstratet he importance of the policies behind the decision, as it protects plaintiffs’ mastery over their cases. Although concluding that the decision should not be overruled-legislatively or otherwise-he recognizes that some issues of patent law may come before regional circuit or state courts. Accordingly, he proposes a model for these courts to adjudicate patent law issues. This model analogizes the problem to the one faced by federal courts when deciding state law issues, and recommends that courts follow Federal Circuit law. Thus, when available, precedent should be followed, and when unavailable, courts should either predict the law or certify the questions to the Federal Circuit, much like in the Erie context.

Legislative Due Process and Simple Interest Group Politics

Victor Goldfeld

Ensuring Minimal Deliberation Through Judicial Review of Congressional Processes

Federal statutes are enacted that, in whole or in part, have failed to receive even minimal attention from Congress. Because the most obvious solution to this problem-procedura lreform of Congress’s internal legislative rules-has not been forthcoming, Victor Goldfeld attempts to put forth the strongest possible case for a judicial approach to addressing this problem. Drawing on recent Supreme Court decisions, Goldfeld outlines “legislative due process”-a form of judicial review in which courts would examine the legislative process by which federal statutory provisions are enacted to ensure that such provisions received at least a minimal level of congressional deliberation. This would improve the quality of congressional policymaking, and help minimize the ability of special interest groups to game the legislative process. He eschews coming to a firm conclusion on whether legislative due process is a viable model of judicial review, instead providing the reader with a framework for approaching that question.

Unequal Treatment in State Supreme Courts

Yohance C. Edwards, Jennifer Ahern

Minority and City Schools in Education Finance Reform Litigation

This Note’s primary purpose is to test Professor James Ryan’s assertion that at least two extra legal factors-the predominant race and setting of plaintiff school disricts-have an influence on the outcome of education finance reform litigation. Although the subject matter of this Note is education finance reform litigation, its findings may be significant to readers who have an interest in judicial decisionmaking as well. Yohance C. Edwards and Jennifer Ahern conduct a quantitative study that surveys the education finance reform litigation that has reached the respective state supreme courts of forty-one states. After analyzing the various factors that have been evaluated in previous quantitative studies of education finance reform litigation, the authors conclude that none of these factors explains why minority and city school districts fare poorly in this litigation. This Note is the first quantitative study of education finance reform litigation to include the number of plaintiff school districts as a variable. The authors find that along with race and school district setting, this variable does have an association with outcome. The authors conclude by discussing how the results of their study suggest that multiracial coalition building may be beneficial for all potential education finance litigation plaintiffs.

On the Separation of Powers Challenge to the California Coastal Commission

David R. Carpenter

Since 1976, the California Coastal Commission has been charged with protecting California’s 1100-mile shoreline. The Commission has been both celebrated for protecting California’s coastal resources and denounced for exerting totalitarian control over private property rights and commercial development. Recently, a California appellate court found the Commission in violation of the state constitution’s separation-of-powers doctrine because of the California legislature’s ability to appoint and remove at will two-thirds of the Commission’s twelve members. In a special assembly, the legislature rushed to amend the Commission’s composition and provide the legislative appointees with fixed terms. The California Supreme Court must now determine whether the ad hoc response alleviates the constitutional concerns.

In this Note, David R. Carpenter argues that the California Supreme Court still should find the Commission unconstitutional because of the legislature’s continued ability to appoint two-thirds of the commissioners. Examining two recent California Supreme Court decisions, the Note identifies two approaches to the separation-of-powers inquiry. One approach asks whether the legislature’s appointment power defeats or materially impairs the governor’s inherent authority to supervise the Commission’s executive powers. The second approach, and that taken by this Note, frames the issue primarily in terms of limitations on legislative power and the problems created when legislators operate beyond their statutory role. This Note argues that appointment power enables and encourages legislators to impose arbitrary influence while abdicating their responsibility to make good law. Utilizing principles from public choice theory, this Note argues that separation of powers should guard against “the twin problems” of faction and governmental self-interest. Those concerns are heightened in this case by the scope of the Commission’s authority and jurisdiction,along with the powerful interests it regulates. Instead of minimizing political influence over Commission actions, the appointment structure has had the opposite effect. By enforcing the separation-of- powers doctrine,the California Supreme Court would take an important and principled action that would not destroy the Commission, but rather potentially would improve its integrity and independence.