We are pleased to announce that the second issue of Volume 80 is now out in print.
The lead piece for Issue 2 is “Direct (Anti-)Democracy,” by Professor Maxwell Stearns. This Article develops the complex argument that democratic decisionmaking embraces a set of tradeoffs based on the process used, ranging from legislative representation to appellate judicial voting (widely used as an example of an undemocratic process if ever one existed). In analyzing this range of models, Professor Stearns concludes that direct democracy – often in the form of a simple up-or-down vote on a single question, with little room for negotiation to attract broader support, is not so democratic after all. This, he concludes, raises some questions as to just how deferential courts ought to be to laws enacted through direct democracy when analyzing statutes under, for example, the Equal Protection Clause.
Second in the issue is “Reconsidering the Separation of Banking and Commerce” by Professor Mehrsa Baradaran. In this piece, Professor Baradaran challenges the longstanding structural features of the banking system, imposed by statute, that largely prevent commercial ownership of banks. A Bank of Wal-Mart might give you a great deal of pause, Baradaran observes – until you take a look at what a great job Goldman Sachs and Bank of America have been doing. She accordingly makes the case that perhaps allowing banks to rely on a corporate parent might reduce the necessity of having the government play the role of the rich uncle. A contrarian look at banking law in the shadow of the “moral hazards” of the last five years.
Third is “When Agencies Go Nuclear: A Game Theoretic Approach to the Biggest Sticks in an Agency’s Arsenal,” by Professor Brigham Daniels. Professor Daniels uses game theory models, long applied to the use or threatened use of nuclear weapons by states, to consider why administrative agencies so rarely seem to “pull the trigger” on the entities they regulate. In part, he concludes that agencies are often stuck with the choice between “going nuclear” – and imposing a politically difficult, harsh sanction – and doing nothing at all, leaving regulated parties free to flout the rules.
Fourth and final for the Articles in this issue is “Beyond Ideology: An Empirical Study of Partisanship and Independence in the Federal Courts” by Professor Corey Rayburn Yung. In this empirical piece, Professor Yung attempts to diversify and deepen the conversation about judicial decisionmaking and its relationship to political and philosophical beliefs held by judges. He does this principally by proposing new criteria that go beyond ideology and consider how independent and partisan judges are, based on their tendencies to break ranks with their peers and their willingness to reverse lower court judges whose ideologies differ from their own. Analyzing thousands of appellate court decisions, Professor Yung presents a series of fascinating conclusions about just how complex the picture of judicial philosophy and ideology really is.
In terms of Notes, this is also a robust issue, with four of this Volume’s 12 Notes present.
First is the work of our outgoing SME, Richard Crudo, with “A Patently Public Concern: Using Public Nuisance Law to Fix the False Patent Marking Statute After the Leahy-Smith American Invents Act.” In this Note, Richard lays out how Congress has attempted to stem the tide of highly lucrative, but socially suboptimal, lawsuits premised on “false marking,” erroneous claims that a given article in commerce is still subject to an enforceable patent. In amending the patent laws in 2011, Congress has narrowed the class of potential plaintiffs, but Richard concludes they’ve gone too far in the opposite direction, ignoring the public nature of the harm that results from false claims of patent enforceability. Instead, he argues that Congress should structure the statute around a public nuisance cause of action.
Second among the Notes is Articles Editor Kyle Noonan’s “The Case for a Federal Corporate Charter Revocation Penalty.” As Kyle details in this piece, relying on the states to punish corporate crime with the “death penalty” of charter revocation has proven hopelessly inadequate in a retributive or deterrent sense. The only way to meaningfully halt long-term patterns of corporate misconduct (such as a lengthy pattern of criminal violations by BP) is to place the critical weapon of charter revocation in the hands of federal prosecutors.
Third, Associate Joseph Schoorl’s Note, “Clicking the ‘Export’ Button: Cloude Data Storage and U.S. Dual-Use Export Controls,” looks ahead to the looming conflict between technological change and our nation’s export regulation regime. When information itself is a potentially security-threatening good when distributed abroad, and accordingly subjected to regulations on whom may send and possess it, what are we to make of the Cloud? Joseph contends that the regulations need to adjust to reflect a world of data-export that has less and less to do with geography and everything to do with access and use, and proposes a new approach toward that end.
Fourth among the Notes is the contribution of Associate Collin Swan, “Dead Letter Prohibitions and Policy Failures: Applying Government Ethics Standards to Personal Services Contractors.” Recently presented by Collin at an ABA conference in Annapolis, this Note examines the strange gaps in accountability that exist between employees of the civil service and the contractors who work alongside them in ways that make them all but indistinguishable. The prohibition on personal-services contracts, he contends, has become a meaningless rule that invites strategic workarounds by government agencies desperate to fulfill their statutory mandates. Instead, the prohibition should be abandoned in favor of a system that brings contractors under closer supervision and the ethics rules that apply to government employees who perform similar work.
