How judges choose between rules and standards fundamentally shapes case outcomes and the development of broader doctrine. While the literature has much to say about the relative merits of rules versus standards, it has largely failed to produce a comprehensive explanation of how judges make that choice. This Article takes a novel approach, using Positive Political Theory to examine the incentives of higher court judges and the information available to them about how lower court judges will likely use those doctrinal tools. By taking seriously both how substantive and ideological judicial preferences shape the choice over doctrinal form as well as the value that judges place on legal obedience, we bridge the divide between the overt cynicism of legal realism and the credulity of much of the rules-standards debate.

This Article identifies the dominant factors in judicial decision making, at both the higher and lower court level—legal obedience and political ideology. Within that framework, we show how six factors determine higher court choice over rules versus standards: political alignment within the hierarchical judicial system, the distribution of case facts, the inherent control characteristics of rules versus standards, the effect of overlapping doctrines, the extent that lower court discretion is unavoidable, and the effect of political heterogeneity on a multimember higher court.

U.S. land-use regulators are increasingly embracing mixed-land-use “urban” neighborhoods, rather than single-land-use “suburban” ones, as a planning ideal. This shift away from traditional regulatory practice reflects a growing endorsement of Jane Jacobs’s influential argument that mixed-land-use urban neighborhoods are safer and more socially cohesive than single-land-use suburban ones. Proponents of regulatory reforms encouraging greater mixing of residential and commercial land uses, however, completely disregard a sizable empirical literature suggesting that commercial land use generates, rather than suppress, crime and disorder, and that suburban communities have higher levels of social capital than urban communities. This Article constructs a case for mixed-land-use planning that tackles the uncomfortable reality that these studies present. That case is built upon an apparent paradox: in urban communities, people do not, apparently, make us safer. But they do make us feel safer. This “People Paradox” suggests that, despite an apparent tension between city busyness and safety, land-use regulations that enable mixed-land-use neighborhoods may advance several important urban development goals. It also suggests an often-overlooked connection between land-use and policing policies.

Problem solving begins at the earliest stages of development and is central to human experience. While individuals solve simple, everyday problems automatically using cognitive shortcuts, more complex problems require self-conscious, creative mental processes. Unilateral processes of decision making solve most of these more complex problems. But when unilaterally derived solutions call for reliance on help from others, parties often engage in deal making to arrange for mutual assistance. Thus, the main purpose of deal making is to implement each side’s solutions to its own problems rather than to reach joint solutions to common problems. Collaboration does occur in deal making, but it is not the main purpose in most instances.

This Article offers a descriptive, instrumental analysis of U.S. contract law as a problem-solving enterprise, and argues that problem solving, both private and public, is the primary focus of U.S. law generally and contract law in particular. It models the building-block concepts of problems, solutions, and methods of implementation, describing how individuals, groups, and governmental institutions reach and implement solutions. It then uses this problem-solving perspective to explain aspects of U.S. contract law, such as the unenforceability of gift promises and gambling contracts, that traditional bargain theories cannot explain adequately, if at all. The Article’s unique perspective also explains why courts cannot function effectively as problem solvers. Because solving complex problems requires the exercise of broad discretion, individuals can accomplish the task by drawing on creative intuition. By contrast, courts are not institutionally capable of solving such problems because the adjudicative process does not allow for the exercise of broad discretion.

In developing its central thesis, this Article distinguishes between contract’s constitutive core and its regulative penumbra. The core empowers private actors to reach and implement solutions to private problems, while the penumbra consists of public regulations that courts apply both to deal making and to deals to solve public coordination problems. This Article concludes that in U.S. contract law, only bargains that unambiguously reflect an effort to use contract’s core to solve preexisting problems are deemed worthy of judicial enforcement. This problem-solving account not only carries explanatory force in describing U.S. contract law, but offers a starting point to begin to develop a robust problem-solving perspective on both private and public U.S. law.

Regulating the content of health insurance contracts, where the government determines which medical treatments and services must be covered, creates tension between principles of fairness and principles of welfare economics. Principles of fairness, after all, may require that all medical losses be shared within a community, while principles of welfare economics would advocate regulation only where there is some form of market failure that leads to an inefficient or suboptimal result. As part of recently enacted federal health care reform, the federal government will, for the first time, have the primary responsibility of regulating the content of privately financed health insurance policies, although the federal government is given the statutory option to borrow heavily from existing state regulation. This Article provides the first comprehensive study of the state legislative process with respect to health insurance content regulation. In the states studied, the author finds that both fairness and welfare claims influence mandate passage, with little reliance by legislators on outside evidence substantiating welfare claims. In contrast to theoretical writings on health insurance content regulation, which emphasize market failure as the primary justification for mandates, this current study finds that mandates were rarely premised on correcting defects in the insurance market. Rather, the justifications provided tend to be more paternalistic in orientation, often based on a desire to increase suboptimal utilization of a particular medical treatment or service regardless of the reason why individuals lack coverage. Even where there is an independent, expert commission providing robust data on proposed regulation, bills with virtually no impact on either health insurance coverage or treatment utilization are passed. Given these findings, this Article argues that the federal government should be hesitant to rely upon existing state-level regulation when it defines “essential health benefits” as part of health care reform.

This Article reviews the remarkable string of seventeen straight losses that environmental plaintiffs have suffered in Supreme Court cases arising under the National Environmental Policy Act (NEPA) and challenges the accepted wisdom that these rulings reflect the Court’s hostility toward environmental protection. A close review of the cases, including the advocacy before the Court in each case, and the deliberations within the Court during its decision-making process, reveals instead a far more nuanced and less one-sided understanding of the rulings, and underscores the significance of effective advocacy both before the Court by arguing counsel and within the Court by the Justices themselves.

Binary analysis that treats Supreme Court rulings as either “wins” or “losses” misapprehends the nature of judicial rulings and the essential role served by legal reasoning. Not all losses are created equal. Some “losses” are the product of concessions made by the prevailing party that amount to significant wins by the purported losing party. And opinions that end by reversing favorable lower court judgments may nonetheless include language highly favorable to environmental plaintiffs in future litigation. To be sure, NEPA plaintiffs have not fared well before the Court and have lost some significant arguments there, but their record is far less dismal or one-sided as is routinely supposed.

Finally, the NEPA cases do suggest that there is an increasing risk that the Court’s docket and rulings are being skewed in favor of commercial interests because of the disproportionate ability of those interests to retain expert Supreme Court advocates. In recent years, the private Supreme Court Bar has enjoyed a significant resurgence, marked by the emergence of a significant group of highly effective lawyers specializing in Supreme Court advocacy. Although the development of such expertise is generally a positive development for the Bar and the Court, it makes it all the more important that such expertise be available to opposing viewpoints on important legal issues that the Court is deciding.

This Note considers the circuit split regarding the treatment of front-pay damages under the Age Discrimination in Employment Act (ADEA). Specifically, courts disagree as to whether a liquated damages award should affect the determination of front-pay damages. This Note begins with an analysis of the remedies available under the ADEA and the nature of punitive damages. Drawing on this background, the author explains the rationales underlying the two approaches for determining front pay—either considering liquated damages when determining front pay or independently considering front-pay damages. The author concludes that a fear of overcompensating the plaintiff motivates the former approach, while an emphasis on the different rationales for the remedies—compensatory and punitive—underlies the latter. To suggest a resolution to this disagreement, the author analyzes liquidated damages and then weighs the strengths and weakness of both methods. This Note concludes with the proposition that liquidated damages and front-pay damages should be considered independently in order to further the purpose of the ADEA and to maintain the integrity of the underlying rationales for the awards.

Financial distress has led to a rise in the shuttering of tax-exempt property owned by non-profit organizations. Typically, nonprofits are not subject to property taxes if they use their properties for charitable purposes. Because these now-fallow properties are no longer being used, a debate has emerged over whether to assess them a property tax. On one side of the debate are those who argue for a strict construction of “charitable use”—one that would exclude non-fallow properties from exemption. Proponents of this construction argue that fallow nonprofit property should be taxed to share the burden of cash-strapped local governments. On the other side of the debate are those who argue for a broad construction of “charitable use”—one that reflects the purposes of nonprofit tax exemptions by excluding fallow nonprofit property from taxation. Proponents of the broad exemption argue that taxing these properties only serves to further strain financially troubled nonprofits, leading to fewer services for the people these nonprofits serve, and in turn placing greater demand on the government. Further complicating the issue is the diverse construction of tax exemptions across the fifty states. This Note examines the varying constructions and purposes of property tax exemptions for nonprofits. The Note concludes by suggesting a simple, more uniform system of taxing nonprofit property under the broad construction of “charitable use” so that fallow nonprofit property remains exempt. This approach would best serve the purposes of nonprofit tax exemptions and the people nonprofits serve.

This Article explores the ironies involved in the contemporary enforcement of family obligations. As forms of intimate partnership and parenthood become ever more varied, the law of family obligation—child support, property division, and alimony—has become increasingly routine and formulaic. As scholars increasingly call for more attention to the varied ways in which different individuals and communities structure their care networks and intimate lives, the law of family obligation has become less, not more attentive to context. This Article explains how the law’s rejection of context is an understandable reaction to the growing diversity of family forms. By unpacking contemporary family law rules, one sees that the baselines and value judgments informing the law of family obligation are usually contested, arbitrary, or both. They are accepted not because they represent consensus on what obligation should be, but because they clearly demarcate who is obligated and for how much. Predictability emerges as more important than context for almost everyone. Social acceptance of so many different family forms makes judicial attention to context extraordinarily invasive and expensive. In an area of law where very few of the parties have the resources or desire to debate the normative underpinnings of family obligation and where both the parties and the state have strong interests in minimizing contested issues, there are compelling reasons to establish a very rule and status-based law of obligation, even if that system is rooted in a normative vision of family that, for most people, has ceased to exist. This Article thus argues that despite the profoundly limited way in which the current law identifies families, some reliance on restricted legal definitions of family will be necessary for any meaningful system of family obligation to operate. In doing so, this Article challenges much contemporary family law scholarship and suggests that we may have to accept the law’s privileging of certain family forms if we are to expect an enforceable system of family obligation.

In a given year, a resident of the United States is roughly twice more likely to move to a different home than is a resident of France (or of western Europe as a whole). Cultural differences undoubtedly account for some of this gap. The central thesis of this Article, however, is that much of this disparity in residential mobility can be chalked up to differences between U.S. and French (and other European) legal policies—in particular, taxation statutes, land-use policies, landlord-tenant laws, and housing assistance programs. This Article also offers a normative framework for analyzing the desirability of household relocations. Legal policies that foster residential moves can enable individuals to better match themselves with a job, a dwelling, a set of housemates, a tenure arrangement, a neighborhood, and a municipality (à la Tiebout). A decision to move, however, may give rise to negative externalities, such as erosion of local social capital. In theory, although rarely in practice, people thus can move too often.

In 2000, a group of American entrepreneurs moved to a former World War II antiaircraft platform in the North Sea, seven miles off the British coast. There, they launched HavenCo, one of the strangest start-ups in Internet history. A former pirate radio broadcaster, Roy Bates, had occupied the platform in the 1960s, moved his family aboard, and declared it to be the sovereign Principality of Sealand. HavenCo’s founders were opposed to governmental censorship and control of the Internet; by putting computer servers on Sealand, they planned to create a “data haven” for unpopular speech, safely beyond the reach of any other country. This Article tells the full story of Sealand and HavenCo—and examines what they have to tell us about the nature of the rule of law in the age of the Internet.

The story itself is fascinating enough: it includes pirate radio, shotguns, rampant copyright infringement, a Red Bull skateboarding special, perpetual motion machines, and the Montevideo Convention on the Rights and Duties of State. But its implications for the rule of law are even more remarkable. Previous scholars have seen HavenCo as a straightforward challenge to the rule of law: by threatening to undermine national authority, HavenCo was opposed to all law. As the fuller history shows, this story is too simplistic. HavenCo also depended on international law to recognize and protect Sealand, and on Sealand law to protect it from Sealand itself. Where others have seen HavenCo’s failure as the triumph of traditional regulatory authorities over HavenCo, this Article argues that in a very real sense, HavenCo failed not from too much law but from too little. The “law” that was supposed to keep HavenCo safe was law only in a thin, formalistic sense, disconnected from the human institutions that make and enforce law. But without those institutions, law does not work, as HavenCo discovered.

This Article analyzes the recent trend of conservative judicial activism in the Supreme Court and searches for a principled reason to explain it. The conservative majority has struck down several laws in recent years, culminating in its invalidation of an important provision of the Bipartisan Campaign Reform Act of 2002 in Citizens United v. Federal Election Commission. While judicial restraint and originalism are currently seen as conservative principles, neither principle explains these decisions.

The author argues that no principle can explain the results of these cases—rather, they can only be explained by the Justices’ personal views and policy preferences. The author compares the conservative majority’s pattern to that of the Warren Court, which largely invalidated laws only when footnote four in United States v. Carolene Products Co. would dictate that the Court should. Thus, neither unrestrained judicial activism nor total judicial restraint is appropriate. Instead, the author argues that a selective judicial activism guided by footnote four is the best approach. The author then concludes that the conservative majority is troubling because it is infusing its personal policy preferences into its opinions while at the same time convincing the public that it is acting in a principled manner.

Auditor litigation risk is growing increasingly out of control. This risk not only poses problems for the auditing industry, but it may also create systemic problems throughout entire financial markets. Auditor litigation risks arise from criminal and civil causes of action at both the federal and state level. This Note specifically addresses civil litigation. Scholars suggest a number of solutions for mitigating auditor civil litigation risk, including bargained liability caps, liability caps with strict liability, and decoupled liability.

This Note argues that federal law should allow auditors to bargain for alternative liability regimes with the audit committees of boards of directors. This approach allows the market to determine the most efficient means for limiting auditor liability while minimizing agency and transaction costs. It also incentivizes boards to create good bargains because of shareholder takeover and proxy threats. The Note also calls for further study on requiring proxy votes to enforce these auditor-board bargains. Lastly, it calls for a provision allowing auditors to opt out of federal and state securities remedies. These proposals comply with current disclosure-based securities laws. Moreover, current regulatory and judicial players could be used to review extreme bargains to ensure fairness.

The Note begins with a discussion of the major players in financial markets: management, the board of directors, shareholders, and auditors. It then follows with background of the multitude of federal and state legal regimes that govern these major corporate players, especially auditors, and the effects these regimes have on auditors. The Note then looks at the justifications of each of the proposed solutions. Continuing with a discussion of the criticisms of each approach, it specifically looks at the effects each approach has on company agency and transaction costs. It then considers the limitations each approach faces from current legal and political structures.

When a federal agency proposes to undertake a “major Federal action,” the National Environmental Protection Act (NEPA) requires the agency, as part of an overall Environmental Impact Statement (EIS), to engage in an analysis of reasonable alternatives to that action. Just what constitutes a major federal action or a proper alternatives analysis, however, is the subject of debate. Should the objectives of third party, nonfederal proponents influence which alternatives are considered? What kinds of alternatives are reasonable? Is the major federal action the approval of a project or the project itself? This Note analyzes the different ways courts have approached these issues, focusing on statutory, environmental, efficiency, and common sense considerations. Ultimately, the author suggests that to fully realize NEPA’s goals of public participation and environmentally focused decision making, courts need to reconceptualize their own analysis of reasonable alternatives. The author posits that courts need to work collaboratively with federal agencies and project proponents by adopting a good faith standard of review for alternatives, rejecting the idea that the “purpose and need” statement of an EIS should guide the scope of alternatives, and recognizing a more limited scope for alternatives when nonfederal third parties propose a project.

The advent of the Internet and the rise of social media websites such as Twitter and Facebook have created new challenges for the courts in protecting defendants’ Sixth Amendment rights. The Sixth Amendment provides criminal defendants with “the right to a speedy and public trial, by an impartial jury” as well as the right “to be confronted with the witnesses against him.” These Internet resources, particularly when combined with new technologies such as smart phones with web-browsing capabilities, provide jurors with a new avenue to do independent research on the defendant or the case, or to communicate trial-related material before deliberations are complete, both of which violate a defendant’s Sixth Amendment rights. This Note analyzes the different approaches courts have taken in combating such violations, including the use of more specific jury instructions, restriction of juror access to electronic devices such as smart phones, use of voir dire to exclude “at risk” jurors, and monitoring of juror Internet activities. Ultimately, this Note argues that jury instructions, prohibitions on electronic devices in the courtroom, voir dire, and monitoring are insufficient to protect defendants’ Sixth Amendment rights. Courts, rather, should establish specific punishments for engaging in these prohibited activities, ensure that the jurors are informed of the punishments, and take a more proactive approach toward identifying violators by questioning jurors throughout the trial process.