For decades, scholars and judges have assumed that federal habeas corpus review of state court criminal convictions should focus on the individual rights of habeas petitioners and that the federal courts should ask whether a state prisoner is being unlawfully detained because the state violated his individual federal rights. This individualized approach to federal habeas review is expensive, time-consuming, and woefully ineffective in stopping states from violating defendants’ federal rights. Indeed, many states systematically violate criminal defendants’ federal rights with impunity. This Article proposes a new conception of federal habeas review under which the federal courts focus on states, not on individual petitioners. Federal habeas relief should be available when, but only when, a state routinely violates its criminal defendants’ federal rights as part of a systemic practice. Reconfiguring federal habeas corpus review to focus on states and systemic practices would reduce redundancy, increase efficiency, and be more respectful of state institutions while, at the same time, recovering one of the original and now lost purposes of federal habeas corpus review.

This article provides a critical analysis of the view, dominant among courts and scholars, that the lower federal courts’ jurisdiction to adjudicate cases involving questions of federal law can be justified on the ground that federal judges are more likely than their state court counterparts to provide evenhanded, uniform, expert adjudication of federal law. It demonstrates that the bias-uniformity-expertise model—despite its prominence in judicial and academic discussions of federal jurisdiction—is significantly flawed in at least two senses. First, there are important ways in which the shape of our jurisdictional landscape cannot be squared with this account of the purposes federal question jurisdiction is designed to serve. Indeed, key fragments of the rules governing the federal courts’ authority to adjudicate federal question cases have explicitly been premised on rejection of each component of the conventional model of federal question jurisdiction. Second, there is reason to doubt the accuracy of the empirical claims that lie at the core of the conventional wisdom. That is, there is cause to question whether (1) federal judges are in fact more likely than their state court counterparts to vindicate federal claims, (2) the lower federal courts meaningfully advance the cause of uniformity in the interpretation of federal law, and (3) federal judges have meaningful expertise in the myriad areas of federal law that come before them.

I endeavor to replace the conventional story about how the state and federal judiciaries differ from one another with an account that better captures the realities of contemporary legal practice. I do this by presenting a model of the federal courts as a kind of franchising arrangement—a chain of dispute resolution forums with a set of basic characteristics held in common across branches, regardless of the location in which any particular branch sits. I argue, in particular, that federal court practice—in sharp contrast to practice in scattered state courts—is characterized by a high measure of procedural homogeneity, a standardized culture marked by a strong ethic of professionalism, and a bench that exhibits generally high levels of competence in the stuff of judge-craft. I argue, finally, that taking heed of the franchise-like qualities of the federal judiciary reveals the inherently political character of questions of jurisdictional allocation. And I suggest, accordingly, that the federal courts have only a limited role to play in policing congressional judgments as to which cases ought to be adjudicated in which forum.

Many people believe that the problem of climate change would be best handled by an international agreement that includes a system of “cap and trade.” Such a system would impose a global cap on greenhouse gases emissions and allocate tradable emissions permits. This proposal raises a crucial but insufficiently explored question: How should such permits be allocated? It is tempting to suggest that in principle, allocation should be done on a per capita basis, with the idea that each person should begin with the same entitlement, regardless of place of birth. This idea, pressed by many analysts and by the developing world, can be defended on grounds of either welfare or fairness. But on both grounds, per capita allocations run into serious objections. If fairness is understood in terms of equally or proportionally sharing the burdens of a climate treaty, per capita allocations are not fair because they do not take into account all the effects of such a treaty.

Any agreement to reduce greenhouse gas emissions will give more benefits to some nations than to others, and will impose more costs on some nations than on others; in these circumstances, per capita emissions rights give the appearance but not the reality of fairness. For those who seek redistribution to those who need help, on grounds of either welfare or fairness, per capita allocations of emissions rights are at best a mixed blessing. Some rich nations are highly populated, and some poor nations have small populations; there is essentially no relationship between size of population and per capita wealth. Per capita allocations would also create serious incentive problems, and they would face decisive objections from the standpoint of feasibility: Per capita rights would transfer hundreds of billions of dollars annually from the United States to China and India, and the United States is most unlikely to sign a treaty with that consequence.

Comparisons are drawn between per capita allocations and other approaches, including those based on existing emissions rates and those with self-conscious redistributive aims. A general goal is to balance welfarist and fairness goals with feasibility constraints; per capita allocations do a poor job of achieving that balance, and an insistence on that approach might make the climate change problem intractable. These conclusions have general implications for thinking about normative goals and practical limitations in the context of international law.

Technical standards, such as interface protocols or file formats, are extremely important in the “network industries” that add so much value to the world economy today. Under some circumstances, the assertion of patent rights against established industry standards can seriously disrupt these network industries. We have in mind two particularly disruptive tactics: (1) the “snake in the grass,” whereby a patentee intentionally keeps a patent “quiet” while a standard is being designed or adopted, and then later, after the standard is entrenched, asserts the patent widely in an attempt to capitalize on its popularity; (2) the “bait and switch” ploy where a patentee encourages adoption by offering royalty-free use of standard-related patents, and then, after the standard has gone into widespread use, begins to enforce its patents against adopters of the standard.

We propose to counteract these tactics with a simple solution: over time, adopters of a standard build up a “reliance interest” in the standard. Under our approach – which we call “standards estoppel” – intentional non-assertion of a patent right in the presence of widespread adoption should create immunity from patent infringement. The fundamental idea behind this doctrine is to prevent “strategic” assertions of patents that exploit the logic of network “lock-in.” As we explain, though this is a simple doctrine based on traditional common law principles, it is a necessary addition to the contemporary legal arsenal.

In particular, “standards estoppel” plugs some dangerous conceptual holes in current rules relating to laches, waiver, estoppel, implied licensing, and patent misuse/antitrust. With our modest addition to the doctrinal fabric, patent law can more effectively guard against the risk of illegitimate leverage, thus more effectively fostering innovation in network industries.

This Comment explores enterprise liability as it applies to corporate groups. It argues that the doctrine of limited liability, which shields a corporation’s shareholders from the corporation’s debts, is problematic from both a normative and an efficiency perspective when applied to the parent/subsidiary context, and in particular to preventing parent liability for a subsidiary’s mass torts, human rights disasters, and environmental harms. Enterprise liability in this limited context provides one possible solution to the shortcomings of limited liability, as a parent corporation would be liable to outside creditors for a subsidiary’s torts if it is part of the same economic enterprise. The Comment then explores areas where enterprise liability, in many different iterations, has gained explicit or implicit support from legislators and judges. The Comment reviews both international jurisdictions and enclaves of United States law where enterprise principles have either become part of an established canon, or survive in the shadows of entity law. It draws on the lessons of these jurisdictions in order to enumerate some of the various features that might characterize a preferable system.

Gang violence in California has exploded since the 1970s. Today, California is home to approximately 300,000 of the nation's 800,000 gang members, and attributes 25% of all state homicides to gang activity. As it became clear in the 1980s that gang violence was impervious to traditional law enforcement techniques, cities across California turned to the civil justice system for help. Since the 1990s, law enforcement has increasingly used anti-gang injunctions as a tool for fighting gang violence. Today, there are approximately 40 gang injunctions in place across California.

Once in place, a gang injunction lasts forever. Years after a court issues an injunction, inactive gang members remain enjoined, implicating constitutional and practical concerns. In spring 2006, the Los Angeles Police Department revealed a startling statistic—no gang member had ever been removed from a gang injunction, though some of the city's injunctions were almost fifteen years old. The announcement generated public concern across California, ultimately resulting in the creation of an unofficial exit processes in Los Angeles in spring 2007, and in San Francisco in March 2008. Currently, these are the only two California cities that have administrative exit processes in place.

This comment argues that cities employing gang injunctions have a constitutional and practical imperative to create clearly defined and legally valid "unofficial" exit processes to aid inactive, enjoined gang members with removing their names from gang injunctions. Part I of the paper describes the current gang crisis and the proliferation of gang injunctions as a law enforcement tool across California. Part II describes the constitutional concerns implicated by the use of gang injunctions, and underlines the importance of creating an exit process. Part III discusses the practical consequences for gang members of being named in injunctions, particularly for those who are not active or who have never been active in a gang. Part IV considers two different examples of unofficial exit processes—from Los Angeles and San Francisco, and examines the constitutional and legal limits on the creation of local, unofficial exit processes. The paper concludes with a discussion of the implications of those limits on the design of exit processes and proposes recommendations for how exit processes should be designed in the future.

This Article attacks the foundations of moral rights scholarship, law, and theory. The author focuses on the moral right of “integrity,” called “the heart of the moral rights doctrine,” which allows an artist to prevent modification, and in some cases, destruction of his art work. Her argument is that moral rights actually endanger art in the name of protecting it. Indeed, the argument challenges the key assumptions of virtually all moral rights scholarship: that moral rights are crucial for the flourishing of art and that, if anything, we need a more robust moral rights doctrine. But moral rights scholars have overlooked a dramatic problem: The conception of “art” embedded in moral rights law has become obsolete. The author attempts to show that moral rights are premised on the precise conception of “art” that artists have been rebelling against for the last forty years. Moral rights law thus purports to protect art, but does so by enshrining a vision of art that is directly at odds with contemporary artistic practice. As a result, the law is on a collision course with the very art it seeks to defend.

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