In a series of publications, Cass Sunstein & Richard Thaler, and Colin Camerer et al., have proposed an approach to legal policy that encourages individuals to pursue actions that will maximize their expected utility while not imposing on those individuals' decisional autonomy. I contend that this policy approach - which has been called "libertarian paternalism" - implies a complementary approach as well, which I call "libertarian welfarism." Libertarian welfarism relies on the same set of policy tools as does libertarian paternalism but with a different goal: to encourage individuals to act in a way that maximizes social welfare. I show that libertarian welfarism leads to different policy prescriptions than does libertarian paternalism, and I argue that the former approach rests on a stronger normative foundation and is less subject to problems of indeterminacy than the latter.

In recent years, several controversial new intellectual property treaties have been adopted, most importantly the World Trade Organization's TRIPS Agreement. Proponents argued that TRIPS would promote global trade and innovation by requiring developing countries to adopt western-style IP protection. Critics allege that the Agreement has potentially devastating implications for developing countries, particularly with regard to access to medicines. These projected effects turn on an empirical question: Can TRIPS in fact oblige developing countries to "harmonize" their IP laws with those of developed countries? Conversely, how much flexibility does the Agreement leave developing countries, not only in theory but also in practice?

Although the literature on TRIPS is vast, it includes no detailed case study addressing these critical questions. This article remedies that, analyzing the implementation of TRIPS in one key - and contested - location: the pharmaceutical sector in India. It shows that, at a formal level, the TRIPS Agreement offers developing countries much more policy space than has commonly been recognized. TRIPS alone thus cannot produce deep harmonization. Nonetheless, TRIPS channels a strong harmonizing force. That force comes not from the text of the Agreement, but from the influence of resource limitations, transnational legal culture, and continued threats of unilateral retaliation. But developing countries can counteract the harmonizing pull of TRIPS with strategies also illustrated in India - strategies I call fragmentation, mimicry, and counter-harmonization.

Whether TRIPS produces deep harmonization therefore turns not on the text of the agreement, but on its context. A great deal depends on whether developing countries effectively deploy the counter-strategies identified here, which remains to be seen.

This article concerns the prosecution of defensive dishonesty in the course of federal investigations. It offers a conceptual framework for violations of 18 U.S.C. § 1001 and related false statement charges by drawing distinctions between harmful deception and the typical investigative interaction and describing the range of lies that fall within the wide margins of the offense. It then places the occurrence of these cases in a socio-legal context, suggesting that some false statement charges function as penalties for defendants' refusal to expedite investigations into their own wrongdoing. In those cases, the government sees itself as the victim of the lying offense and uses the charges to assert authority. Enforcement decisions in marginal criminal lying cases are driven by efficiency rather than accuracy goals, and that may produce unintended expressive consequences. Using false statement charges as pretexts for other harms can diminish transparency and mute signals to comply. Accountability also suffers when prosecutors can effectively create offenses, and when it is the interaction with the government itself rather than conduct with freestanding illegality that forms the core violation. And significant credibility costs and potential backfire effects may arise from the disjunction between prosecutions and social norms about defensive dishonesty. Animating the materiality requirement in the statute with the harm principle could mitigate these distortions. An inquiry into the objective impact of a false statement might account for the nature of the underlying conduct under investigation, whether the questioning at issue is pretextual, whether the lie is induced, and whether the deception succeeds or could succeed in harming the investigation. By taking materiality seriously, courts could both restrain prosecutorial discretion and narrow application of the statute to cases that harmonize with social norms.

The role of victim restitution in the criminal justice system has changed dramatically over the past quarter century. During that time, Congress enacted a series of legislation designed to strengthen and expand restitution at the federal level, morphing victim restitution from a judicial afterthought to a legislative mandate. The most notable piece of legislation was the Mandatory Victims Restitution Act (“MVRA”) of 1996, which removed judicial discretion from the restitution process by mandating that restitution be ordered in the full amount of victims’ losses without regard to defendants’ financial circumstances. As a result of the MVRA, the number and size of restitution judgments has increased exponentially.

Despite the widespread impact of the MVRA on victims, offenders, and the criminal justice system, the practical effects of the Act have been scarcely evaluated. This Comment addresses that deficiency in the discussion of the MVRA through an analysis of its practical efficacy. To that end, the Comment looks at the MVRA’s impact on victim compensation, victim satisfaction, and offender rehabilitation. Through statistical, social, and legal analysis of these topics, the Comment reveals that the MVRA likely leaves both victims and offenders worse off than they were under the statutory scheme that preceded the Act. The paper concludes by making a series of policy recommendations to ameliorate the current state of federal restitution, offering both short-term fixes and long-term solutions.

The main question this article seeks to answer is: given all that feminist legal theory has done to help make the legal system more amenable to the needs and rights of women, what does feminism have to offer sex and gender non-conforming persons seeking redress before the law? How effective a tool is feminism in the endeavor to make the legal system more responsive to the social and legal needs of persons who do not fall neatly into the categories of biological male or female? In this paper I am specifically concerned with transgender individuals who seek redress for discrimination in the workplace under Title VII of the Civil Rights Act of 1964. For the most part these claims have proved unsuccessful because courts have by and large refused to recognize transgender discrimination as discrimination “because of sex.” Can feminist legal theory be a resource for reconstructing the normative understanding of “sex” in a way that could make the law in this area more responsive to trans needs? Also, in addition to doctrinal interventions, are there any practical interventions that can be informed by the ideas that legal feminism has to offer? In trying to answer these questions I look at several varieties of feminist theory to determine the extent to which they seek to trouble or question certain normative ideas concerning the immutability of sex and the potential their work has for disrupting how these normative ideas and assumptions affect judicial and decision making. My search leads to the conclusion that no feminist legal theory has explicitly proposed a pro-transgender theory of legal advocacy. However, several of these theories offer useful conceptual ideas as well as practical tools for imagining and constructing such an intervention.

By any measure, the California Supreme Court’s decision in In re Marriage Cases is the most significant in the last year and in recent memory. Chief Justice George’s opinion thoroughly and forcefully explains why gay and lesbian individuals have the right to marry under the California Constitution. This conclusion is founded on basic principles of California constitutional law: the right to marry is a fundamental right, and discrimination on the basis of sexual orientation is inherently suspect.

Chief Justice George’s opinion is striking in how thoroughly and carefully it explains the constitutional basis for marriage equality. Yet its reasoning and rhetoric played virtually no role in the public debate over Proposition 8. If it had been far shorter and much more poorly reasoned and written, the outcome would surely have been the same on election day.

The interesting and unexplored question is whether the opinion could have done anything to sway public opinion or to change Proposition 8’s fate. But is this even a fair question to ask? Should judicial opinions seek to persuade the public? To answer that question requires thinking about whom judges actually intend to address and whom they should address. 

Related Articles:

Chief Justice Ronald M. George, Achieving Impartiality in State Courts

William M. Eskridge, The Marriage Cases-Reversing the Burden of Inertia in a Pluralist Constitutional Democracy

Photo Source: Flickr/Adam Chamness

The California Supreme Court has replaced the New York Court of Appeals, the federal Court of Appeals for the Second Circuit, and the U.S. Supreme Court as the court at the cutting edge of many issues in American public law. The process of displacement probably began long ago, perhaps as early as 1948, when the California Supreme Court’s decision in Perez v. Sharp became the first appellate decision to recognize that state bars to interracial marriage are unconstitutional. That landmark decision has been followed by a steady stream of others. The latest such decision is In re Marriage Cases, in which a closely divided (4-3) court held that the State’s exclusion of same-sex couples from civil marriage violated the state constitution’s equal protection guarantee.

It has been very gratifying to see one of the finest law schools in the nation conclude that state courts, and specifically the California Supreme Court, deserve closer study because of the significant position they occupy in the legal fabric of the United States. I propose here to touch upon the broad significance of the role of the judicial branch—at every level—in our governmental structure, and to highlight some of the tensions underlying the role of impartial state judicial systems in the governance of our nation.

Ever since reproductive technology became widely available to treat fertility problems, some physicians have tried to limit access to this technology for various reasons, including the age, marital status, and sexual orientation of patients. In a landmark ruling, the California Supreme Court recently held that clinic physicians may not deny lesbians access to fertility treatment on the grounds that the procedure violated the physicians’ religious beliefs. The court found that neither the federal nor state constitutional rights to free exercise of religion exempted the doctors from following antidiscrimination provisions in California’s Unruh Civil Rights Act (Unruh Act). In reaching this result, the court held that the federal free exercise right did not justify noncompliance with a neutral and generally applicable law. It went on to find that even if the state constitution granted stronger protection, the physicians’ interests in religious freedom still did not overcome the state’s compelling interest in ensuring equal access to reproductive treatment. In so ruling, the court resolved the dispute at hand, but avoided answering the fundamental legal question of what level of protection the California Constitution guarantees for free exercise of religion.

Since the Gold Rush, the Bay-Delta has endured much: from the flushing of its tributaries with mud and debris by hydraulic miners to the dredging of waterways and draining of marshes by engineers. But as the decades wore on, as pumping stations pushed water to rich fields and booming cities, and as California grew to become the most populous state in the country, the Bay-Delta wilted. Water quality worsened. Populations of some native species dwindled. Levees threatened to collapse and flood Sacramento and surrounding cities. In 1992 Governor Pete Wilson declared the Bay-Delta broken.

Two years later, in an effort to repair the damage, the eighteen state and federal agencies12 that regulate the Bay-Delta formed CALFED—a consortium charged with creating a collaborative thirty-year plan for the troubled estuary. In 2000, CALFED issued that plan: a high-level blueprint for restoring the
ecological health of the Bay-Delta and improving its water management. Agricultural interests from the northern Central Valley soon challenged the plan under the California Environmental Quality Act (“CEQA”), which provides those who oppose projects for environmental or other reasons with
legal means to attack them. The resulting litigation dragged on for eight years and culminated in In re Bay-Delta Programmatic Environmental Impact Report Consolidated Proceedings (“Bay-Delta”). The unanimous California Supreme Court decision upheld the CALFED plan and, in doing so, added
certainty to California’s increasingly uncertain water planning process.

The California Supreme Court recently took a key step toward protecting the due process rights of prisoners. The court required the governor or Board of Parole Hearings (the “Board”) to present “some evidence” indicating that an inmate is currently dangerous to withstand judicial review of a decision denying parole. This outcome affects approximately twenty-three thousand California prisoners serving life sentences with the possibility of parole. After a suitability hearing, the Board may grant parole to these “lifers.” However, it rarely does so. The governor can then affirm, modify, or reverse the Board’s decision. California governors have overwhelmingly chosen to reverse. For example, from 1999 to 2003, Governor Davis reviewed 371 parole grants and approved only nine. The California Supreme Court, in 2002, held that thesedenials are subject to judicial review, but only to determine that the governor based his decision on “some evidence” related to the statutory factors. In response, the governor regularly presented the egregiousness of the crime, by itself, which the courts found to suffice as “some evidence” of unsuitability. Because almost all lifers, by definition, are guilty of criminal acts that may be considered egregious, this open-ended standard failed to effectively provide them with a remedy for violations of due process. In re Lawrence corrected this by holding that the evidence for denial must be rationally related to a finding of “current dangerousness.”9 By requiring courts to focus on current dangerousness, Lawrence increased the judiciary’s ability to reject the evidence presented to deny parole. This new discretion has finally permitted the judiciary to assert itself in the parole process, leading to better safeguarding of the due process rights of inmates.

Since 1978, fiscal limitations imposed by the California Constitution have curbed the ability of local governments to raise revenue. Recently, the California Supreme Court made one of the most important of these limitations even more restrictive. In Silicon Valley Taxpayers Association, Inc. v. Santa Clara County Open Space Authority, the court held that a property assessment intended to fund open space land acquisition and preservation did not meet Proposition 218’s procedural and substantive requirements. By eliminating the deferential standard of review traditionally accorded to this type of agency determination, Silicon Valley privileges state voters over local voters and elevates fiscal limitation to the level of core California constitutional issues. Although the court based its decision on the voters’ expressed intent to limit property taxes—as demonstrated in two popular voter initiatives—the decision’s departure from conventional jurisprudence will permanently constrain the ability of local governments in California to fund essential programs.

Rules governing attorney conduct in cases of inadvertent disclosure of privileged or protected materials must strike an appropriate balance between two competing bedrocks of American jurisprudence: an attorney’s ethical duty to represent her client zealously, and the evidentiary shield from discovery afforded privileged or protected documents. The California Supreme Court’s holding in Rico v. Mitsubishi Motors Corp. represents California’s response to this balancing act, harmonizing two conflicting precedents governing the inadvertent disclosure of privileged documents—one favoring an attorney’s duty of zealous representation,5 and the other supporting an attorney’s evidentiary privileges and protections. The Rico court, consistent with ethical standards adopted in states throughout the nation, held that an attorney “who receives privileged documents through inadvertence . . . may not read a document any more closely than is necessary to ascertain that it is privileged” and must notify the disclosing attorney immediately in order to “resolve the situation.” The court’s decision, however, does not entirely foreclose a
receiving attorney, under limited circumstances,1 from using information from an inadvertently disclosed document to her client’s advantage. Nevertheless, while Rico shed much needed light on ethical standards governing attorney conduct in cases of inadvertent disclosure, the Rico rule highlights a fundamental problem with the state’s work product protection
scheme: in conjunction with California’s limited crime-fraud exception for attorney work product protection,12 the Rico rule leaves all civil actions in California vulnerable to criminal or fraudulent conduct inadvertently disclosed by counsel during the course of litigation.