Endowment theory holds the mere ownership of a thing causes people to assign greater value to it than they otherwise would. The theory entered legal scholarship in the early 1990s and quickly eclipsed other accounts of how ownership affects valuation. Today, one finds appeals to a generic “endowment effect” throughout the legal literature. Recent experimental results, however, suggest that the empirical evidence for endowment theory is weak at best. When the procedures used in laboratory experiments are altered to rule out alternative explanations, the “endowment effect” disappears. This and other recent evidence suggest that mere ownership does not affect willingness to trade or exchange. Many experimental economists no longer ascribe to endowment theory. Legal scholars, however, continue to rely on endowment theory to predict legal entitlements’ probable effects on expressed valuations. That reliance is no longer warranted. Endowment theory’s influence in legal scholarship provides important lessons about how legal scholars and policymakers should, and should not, use results from experimental economics.
Crucial to the U.S. Supreme Court’s disposition of the constitutional challenge to the Affordable Care Act (ACA) was a hypothetical mandate to purchase broccoli, which the U.S. Congress never had considered and nobody thought would ever be enacted. For the five justices who concluded that the ACA exceeded Congress’s commerce power, a fatal flaw in the government’s case was its inability to explain adequately why upholding that mandate would not entail also upholding a federal requirement that all citizens purchase broccoli. The minority insisted the broccoli mandate was distinguishable. This Article argues that the fact that all the justices insisted on providing a limiting principle—which was the demand underlying the broccoli hypothetical—was perhaps the most notable, precedent-breaking aspect of its landmark decision. As the Article shows, the Court almost always uses narrow, localist reasoning that analyzes only the government’s actual action when confronted with novel constitutional questions. Indeed, the Court ordinarily explicitly declines to provide a limiting principle until it has heard several cases from which it can confidently deduce one. The Article provides the first comprehensive analysis of how, and why, the broccoli hypothetical ultimately proved so deeply consequential. Outside the courts, where the constitutionality of the mandate was robustly debated, the broccoli hypothetical served to highlight the potential liberty costs of the ACA. In the courts—where, strictly speaking, the doctrinal question involved not personal liberty but congressional power—broccoli ensured that liberty costs would be a significant element of the constitutional analysis, and it also generated a perceived need to identify a limiting principle. In short, broccoli was a critical bridging mechanism that brought together the popular constitutional movement mobilized against the ACA and the constitutional challenge taking place in the courts. We conclude with a normative assessment of this extrajudicial influence on the courts. We argue that while popular constitutional theory might justify the majority’s novel liberty-centered approach to congressional power, it cannot warrant the Court’s unusual break from localist legal reasoning. The Court’s premature engagement with limiting principles bypassed the benefits of its ordinary incremental, case-by-case analysis, and circumvented institutional synergies that can generate superior and more democratically legitimate outcomes when courts and legislatures work together, over time, to flesh out constitutional judgments.
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Article | Mark D. Rosen & Christopher W. Schmidt | Page 66
The Fourth Amendment’s border search doctrine has historically given the U.S. government the right to search, without individualized suspicion, the belongings of any individual crossing the U.S.border. Courts have traditionally justified this power by citing the government’s paramount interest in preventing the smuggling of dutiable goods and contraband such as illegal drugs. In the twenty-first century, the government has controversially used this power to search and detain travelers’ portable electronic devices, such as laptop computers, without suspicion to inspect for the transport of prohibited materials like child pornography, terrorist communications, and pirated software. In March 2013, the Ninth Circuit in United States v. Cotterman became the first federal circuit court to rule that a particular border search of an electronic device had to be preceded by a finding of reasonable suspicion that the individual had committed a crime. Nonetheless, divergent rulings from the Fourth Circuit and a Massachusetts federal district court leave the future of digital border searches shrouded in legal uncertainty. Furthermore, the Department of Homeland Security’s recent reaffirmation of its view that no suspicion at all is required for such searches puts the government on a legal collision course with the Ninth Circuit and any other jurisdiction that adopts a similar position. This Comment argues that digital border searches merit greater scrutiny than conventional border searches because they are more likely to harm individuals’ Fourth Amendment interests. The executive and legislative branches have been unwilling and unable, respectively, to cabin the government’s power to search people’s electronic devices without suspicion. Consequently, this Comment proposes that courts add guidance, consistency, and greater Fourth Amendment protection to the laws governing suspicionless digital searches at the border by adopting a special needs–style balancing test that weighs the government’s interests against the individual’s and provides that the most intrusive searches are impermissible without reasonable suspicion.
Article III of the U.S. Constitution requires standing to sue for federal subject matter jurisdiction over a case. Under the modern test for standing, plaintiffs must show that they suffered some concrete and imminent injury-in-fact as a result of the illegal conduct of the defendant. While many scholars and judges have critiqued the U.S. Supreme Court’s development and application of the injury-in-fact requirement, relatively little attention has been paid to disturbing racial double standards in the Court’s standing jurisprudence. When racial minorities have brought equal protection challenges against programmatic governmental discrimination, the Court has applied standing doctrine strictly. But when white plaintiffs have brought equal protection challenges against racial remediation programs, the Court has continually relaxed standing requirements. This Comment seeks to illustrate and analyze this racial divide by comparing Supreme Court cases raising the issue of standing in the equal protection context. Applying a Critical Race Theory perspective, this Comment ultimately concludes that this racial contradiction in standing doctrine stems from the Court’s modern doctrinal push to uproot de jure racial discrimination and to leave de facto racial discrimination alone. Consequently, this Comment suggests either correcting the resulting double standard in standing requirements or eliminating the injury-in-fact requirement altogether.
The U.S. Supreme Court announced in Miller v. Alabama, that the mandatory imposition of life in prison without the possibility of parole against juveniles was cruel and unusual punishment in violation of the Eighth Amendment. The million-dollar question was whether it would do any good for the over 2000 juveniles who had previously been so sentenced. The touchstone of Miller’sretroactivity hinges on the question of whether the rule it announced is substantive—and therefore retroactive—or procedural.
The quasi-substantive/quasi-procedural nature of the Miller opinion created a conundrum for lower courts, which have split on the retroactivity question, with several additional jurisdictions yet to decide. As detailed in this Essay, the answer to this puzzle comes from an unlikely source: the Court’s Sixth Amendment jury-trial jurisprudence, and particularly its June 2013 interpretation of that right in Alleyne v. United States. Though unrelated to both juvenile sentencing and retroactivity, the Alleyne Court determined that where the existence of a fact dictates whether a mandatory minimum applies, the fact acts as an element of the underlying offense. This Essay extrapolates from the Alleyne holding and argues that Miller’s requirement that sentencers consider age and its attendant consequences in cases involving juveniles—making age at the time of the offense a fact that triggers whether the mandatory minimum sentence of life without parole applies—converts age to an element of the underlying offense, rendering Miller a substantive rule that must be applied retroactively.
This Essay analyzes the prohibition on the use of chemical weapons in civil conflicts and applies its findings to the Syrian civil war. We find that international humanitarian law and international criminal law provide a clear ban on the use of chemical weapons in international armed conflict. This prohibition is less clear in noninternational armed conflict, suggesting the need for legal reforms to firmly ban the use of chemical weapons in all armed conflicts. Furthermore, we find the use of chemical weapons in Syria does not, by itself, cross a legal red line justifying military intervention. Instead, the use of chemical weapons is one factor in determining the existence of a humanitarian crisis requiring strong international action.
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By Jillian Blake & Aqsa Mahmud | Volume 61 | Page 244
Credit reports play a central role in some of our most important transactions, such as buying a house or car, or even getting a job. Yet an alarming number of credit reports contain damaging inaccuracies. The primary purpose of the Fair Credit Reporting Act (FCRA) is to protect consumers against these inaccuracies, but the FCRA also makes it very difficult for consumers to force creditors to fix errors. In particular, there is no private right of action to enforce the creditor’s duty of accuracy unless a consumer first notifies a third party—a consumer reporting agency such as Experian, TransUnion, or Equifax—and unless that agency in turn notifies the creditor. This structure raises significant procedural hurdles for a consumer and can make it extremely difficult to sufficiently plead a cause of action against a creditor. This Essay argues that Congress should change the law to give consumers the private right of action they now lack.
In the aftermath of George Zimmerman’s state court acquittal in the Trayvon Martin killing, the U.S. Department of Justice is considering whether to bring federal criminal charges against Zimmerman arising out of the same incident. While such a dual or successive prosecution does not violate double jeopardy, the determination whether the federal government should bring charges turns on whether the Petite Policy, an internal U.S. Department of Justice Guideline, has been satisfied. Professor Kurland contends that because the requisites of the Petite Policy, that the prior state trial must have left a substantial federal interest demonstrably unvindicated, cannot be established, a federal prosecution should not be authorized. Rather, more appropriate and constructive nonprosecutorial alternatives should be pursued to address the myriad of criminal justice and social policy concerns impacted by the tragic incident.
In Public Interest Lawyering: A Contemporary Perspective, Professors Alan Chen and Scott Cummings provide a nuanced and thorough account of the relationship between lawyering and social change. In this Review Essay, Professor Douglas NeJaime explores how key insights from Chen and Cummings’ textbook could impact the way students approach adjudication, which remains the primary subject of instruction in law school classrooms. Continuing the marriage equality case study with which Chen and Cummings conclude, NeJaime analyzes the U.S. Supreme Court’s recent decisions inHollingsworth v. Perry and United States v. Windsor through the lens of Public Interesting Lawyering. He argues that rather than understand the decisions as instances of top-down, court-ordered reform, students would locate the Court’s intervention within a bottom-up, dynamic process of legal and social change. As Public Interest Lawyering reveals—and as the Court’s approach in Perry and Windsor confirms—lawyers, litigants, and activists, rather than judges, drive that process.
In this contribution to the Symposium honoring Stephen Yeazell, the author explores the interaction between group litigation and social context in the contemporary setting. She traces the recent law of class action waivers coupled with mandatory individual arbitration clauses in consumer and employment contracts. She shows how the Supreme Court’s decisions in AT&Tv.Concepcion and AmericanExpressv.ItalianColors enable large corporations that impose class action bans on consumer and employees to achieve de facto immunity from decades of hard-won protective legislation. She concludes that Yeazell’s insight—that the availability of group litigation is intricately linked with a society’s social arrangements—is as true today as it was in the 1970s, when he first examined the issue.