Issue 5

Policing Facts

The United States Supreme Court’s understanding of police practices plays a significant role in the development of the constitutional rules that regulate officer conduct.  As it approaches the questions of whether to engage in constitutional regulation and what form of regulation to adopt, the Court discusses the environment in which officers act, describes specific police practices, and explains what motivates officers.  Yet the majority of the Court’s factual assertions are made entirely without support or citation, raising concerns about whether the Court is acting based on a complete and accurate perception.  When it comes to policing facts, the Court too often gets it wrong. This Article explores the influence that the Court’s conception of policing has on the creation and modification of constitutional norms.  It demonstrates that misunderstandings about law enforcement have led to constitutional rules that fail to align with the world that they were designed to regulate.  Confusion about the facts upon which a rule is built creates a gap between the conceptual justification of the rule and its practical consequences, between the effect that the rule was intended to have and the effect it actually has.  Thus, misalignment results in the under- or overregulation of officer behavior and, correspondingly, the under- and overprotection of liberty and privacy interests.  This observation offers one explanation for why the Court’s constitutional pronouncements often fail to have the anticipated result.  Having identified the effects that follow from basing a rule on a faulty factual premise, I explore ways to narrow the gap.  When constitutional rules are predicated on empirical information, a more accurate understanding of police practices will better align those rules with reality, leading to both more precise constitutional rule making and more efficacious liberty protections.


The Puzzling Lack of Cooperatives

Some of the most recognizable companies, including Land O’Lakes, REI, the Associated Press, Ace Hardware, and State Farm Insurance, are organized as cooperatives—firms owned by their suppliers, workers, or customers.  Yet aside from isolated areas of the economy, cooperatives constitute only a small portion of American enterprise, which is otherwise dominated by investor-owned firms.  Conventional wisdom assumes that firms either start as cooperatives or convert to cooperatives when cooperatives offer the highest ongoing benefits to owners, and it explains the lack of cooperatives by suggesting that cooperatives usually do not maximize ongoing benefits. This Article looks at entrepreneurs’ and brokers’ actions when starting or converting firms.  It finds that the conventional assumption is often violated.  Starting a cooperative is similar to supplying a public good, and just as unsubsidized public goods are underprovided, so too are unsubsidized cooperative starts.  Additionally, a lack of viable brokering institutions prevents most existing firms from converting to cooperatives even when cooperatives promise the highest ongoing benefits.  These findings explain cooperatives’ low market share and several empirical observations that are inconsistent with the conventional wisdom.  The results suggest social welfare could be improved if cooperatives were subsidized, through favorable tax treatment, grants, or regulatory intervention like ABA rules requiring law firms to be owned by lawyers.  They also question the shareholder primacy model of corporate governance.  The Article closes by briefly considering the Affordable Care Act’s current $2 billion subsidization of health insurance cooperatives.

China in the WTO and Beyond: China’s Approach to International Institutions

China used to be one of the few countries that avoided most international affairs and shunned most international norms.  Recognition of the legitimacy of the Western-dominated international institutions and norms was alien or unacceptable to China.  Recently, as China rises as a world power, it has begun to embrace regional and global institutions and take on the responsibilities that come with great power status.  It has embraced much of the current constellation of international institutions, rules, and norms.  Does this signal that China has embraced the Western-dominated international institutions and norms?  If yes, in what context?  By examining China’s international behaviors, particularly since its accession to the WTO, this Article finds that its experience in the WTO has been a mixture of monitored membership, an eagerness to participate, and an aspiration to change.

Living Separate and Apart Continuously: The Louisiana Supreme Court Relates Disavowal to Divorce in Pociask v. Moseley

Derek Pociask and Kera Moseley were married on October 11, 1997, and welcomed a son into the world only two years later.  Alas, the romance waned, and the couple physically separated on April 30, 2006.  The following year, the district court rendered a judgment of divorce. Two months prior to the divorce, on March 15, 2007, Moseley gave birth to another child, J.M.  Soon after being notified on July 15, 2008, that Moseley had asserted that he is the father of J.M., Pociask filed a petition to disavow paternity pursuant to Louisiana Civil Code article 189 in the Twenty-Second Judicial District Court of Louisiana. After the results of a DNA test revealed that Pociask was not the biological father of J.M., Moseley conceded this fact and admitted that Pociask had a vasectomy prior to the pregnancy at issue.  Moseley countered

Pociask’s motion for summary judgment with her own motion, alleging that Pociask failed to timely file his disavowal action and could not avail himself of the exception to the time limitations set forth in article 189 because the parties did not live separately and apart continuously for 300 days immediately preceding J.M.’s birth.  Pociask and Moseley spent one night together in the matrimonial domicile when Pociask traveled to New Orleans from his home in Pennsylvania to attend his brother’s wedding.

Reading the similar provisions found in article 189 and articles 102 and 103 (the divorce articles) in pari materia, the district court reasoned that the one-night stay at the matrimonial domicile in May 2006 did not interrupt the requisite period of time for the parties to be living separate and apart continuously and granted summary judgment in favor of Pociask.  On appeal, the Louisiana First Circuit Court of Appeal strictly applied the disavowal action articles and reversed the district court’s ruling, rendering judgment in favor of Moseley.  After granting certiorari, the Louisiana Supreme Court held that the phrase “living separate and apart continuously” in article 189 and the divorce articles should be read in pari materia and reinstated the judgment of the district court in favor of Pociask.  Pociask v. Moseley, 2013-0262, pp. 14-16 (La. 6/28/13); 122 So. 3d 533, 542-43.

Walking Dead: The Fifth Circuit Resurrects Rational Basis Review

For generations, St. Joseph Abbey (Abbey) has constructed wooden caskets to bury its monks, but more recently, the Abbey assembled a lawsuit to bury an unconstitutional law.  After Hurricane Katrina destroyed its timber and rendered its source of income lifeless, the Abbey began to sell caskets to the general public.  While the monks of the Abbey offer no funeral services, they earn their living selling caskets at lower prices than those offered by funeral homes.  Under the Louisiana Embalming and Funeral Directors Act (Act), intrastate sales of caskets to the public may only be made by a state-licensed funeral director and at a state-licensed funeral home.  In 2007, the Louisiana State Board of Embalmers and Funeral Directors (Board) ordered the Abbey not to sell caskets to the public, and Boyd Mothe Sr., a state-licensed funeral director, initiated a complaint against the Abbey.  The Abbey retaliated, filing suit in the United States District Court for the Eastern District of Louisiana.

The Abbey asserted that the licensure requirements deny it equal protection and due process under the Fourteenth Amendment because the restrictions bear no rational relationship to any valid governmental interest.  The Board countered that the challenged rules, insulating funeral directors from competition, are rationally related to the state’s interest in regulating the funeral profession.  In the alternative, the Board maintained that economic protection of a particular industry is a legitimate state interest.  The district court issued a judgment for the Abbey, affirming that economic protectionism is not a legitimate state interest and finding no rational relationship to consumer protection, public health, or safety.  The state appealed, but the United States Court of Appeals for the Fifth Circuit, “[i]n the interests of federalism and constitutional avoidance,” deferred its decision by certifying the Louisiana Supreme Court to resolve the controversy under Louisiana law.  After the Louisiana Supreme Court denied certification without explanation, the Fifth Circuit addressed the constitutionality of the Act.  The Fifth Circuit held that mere economic protection is not by itself a legitimate governmental purpose and the Act was not rationally related to consumer protection or public health and safety.  St. Joseph Abbey v. Castille, 712 F.3d 215 (5th Cir. 2013).

United States v. Scruggs: The Fifth Circuit Creates a New Method To Determine What Constitutes a “More Serious” Charge

Richard “Dickie” Scruggs first found notable success as a plaintiffs’ attorney in asbestos litigation.  Not long after, Scruggs found massive success as one of the key plaintiffs’ attorneys in tobacco litigation.  Scruggs became a subject of national media attention, even finding himself as a character in the Academy Award-nominated motion picture The Insider, Hollywood’s take on the epic legal fight against the tobacco industry.  However, behind the scenes, Scruggs continuously found himself embroiled in fee-sharing disputes with cocounsel.  In particular, Roberts Wilson, Scruggs’s cocounsel in asbestos litigation, filed suit against Scruggs for unpaid fees.  Mississippi Circuit Court Judge Robert “Bobby” DeLaughter was assigned to the case.  Scruggs, having recently lost a similar fee-sharing suit, decided to put into motion a scheme to avoid the same fate twice.  Scruggs hired Ed Peters, a close friend of DeLaughter, as a covert go-between to deliver an offer from Scruggs to DeLaughter:  if DeLaughter tipped the scales in Scruggs’s favor, Scruggs would speak with his brother-in-law, Trent Lott, a United States Senator, and recommend DeLaughter for a federal district court judgeship.  DeLaughter, who openly coveted a federal judgeship, began to work on his end of the corrupt bargain to favor Scruggs. After the case with Wilson settled, the Scruggs-DeLaughter scheme was exposed by members of Scruggs’s legal team who were cooperating with the government’s investigation of a separate judicial bribery scheme.  Scruggs was indicted on three counts of aiding and abetting honest-services mail fraud.  Scruggs pled guilty to a superseding bill of information that charged him with one count of aiding and abetting honest-services mail fraud.  In response to Scruggs stating his plea of guilty to the United States District Court for the Northern District of Mississippi, Judge Glen H. Davidson, sitting in the same seat that DeLaughter so ardently craved, stated on the record, “The Romans had a proverb which said that money was like seawater.  The more you drink, the thirstier you become.  In looking back at your situation, I think that’s certainly applicable, and it’s sad.”  In June 2010, the United States Supreme Court handed down Skilling v. United States.  Addressing the constitutionality of 18 U.S.C. § 1346, the Court clipped the wings of the honest-services statute, limiting its applicability to kickback schemes and bribery only.  In response to the Skilling decision, Scruggs filed a motion to vacate his sentence, pursuant to 28 U.S.C. § 2255, arguing that he did not admit to bribing Judge DeLaughter and thus could not be guilty of violating § 1346 as it is now defined under Skilling.  The district court found that by pleading guilty, Scruggs had procedurally defaulted on the claim.  The court denied Scruggs’s § 2255 motion after finding that Scruggs could not show actual innocence or cause and prejudice.  Scruggs appealed, challenging the court’s subject matter jurisdiction in light of Skilling, in addition to arguing that he did not procedurally default on his claim.  The United States Court of Appeals for the Fifth Circuit held that the district court had subject matter jurisdiction and that Scruggs was required, and failed, to show actual innocence of all three forgone honest-services counts in the original indictment.  United States v. Scruggs, 714 F.3d 258 (5th Cir.), cert. denied, 134 S. Ct. 336 (2013).

The Boundary Claim's Caveat: Lawyers and Confidentiality Exceptionalism

In legal ethics scholarship, the “boundary claim” stands for the idea that lawyers must represent clients zealously but within the bounds of the law. The idea has long been embraced by the legal profession as both a description of— and justification for—the unique moral, social, and political space occupied by lawyers. This Article asserts that this professed commitment to obey the law comes with a caveat: the legal profession has been unwilling to acknowledge that lawyers must comply with laws that require the disclosure of client confidences. In fact, the bar has a fairly extensive history of suggesting or asserting that lawyers are exempt from such laws. This Article traces that history and then considers its significance. Properly located within the state and federal constitutional structures that should form the framework for this assessment, the idea that lawyers are exempt from laws that require disclosure is, in some of its manifestations, really quite radical, raising questions about the role of lawyers in a constitutional democracy that the bar has never satisfactorily addressed.

Bailouts and the Potential for Distortion of Federal Criminal Law: Industrial Espionage and Beyond

This Article reveals previously neglected and disconcerting consequences that government participation in corporate ownership can have on American criminal law, and it illustrates these problems by establishing how the recent bailout could influence criminal enforcement. The Article shows how the model of cost allocation developed by Guido Calabresi and based on Ronald Coase's work can apply in the context of the criminal law and specifically economic crimes. The argument in this Article then demonstrates how the government's purchase of corporate shares through the implementation of the Troubled Asset Relief Program (TARP) causes inefficiencies and inequalities in the criminal law, including by shifting prosecutorial and other enforcement resources toward “preferred” companies and allowing for the imposition of higher statutory penalties against economic criminals that offend against those entities. As a consequence, some corporations may underinvest in private precautionary measures while others will be forced to overinvest and pass on the costs to their customers through artificially inflated prices. The potential end result is a misuse of government power to reward unsuccessful companies like General Motors at the expense of successful ones like Ford. Having established a general framework for using a cost allocation analysis to address economic crimes optimally and having shown that TARP leads to inefficient outcomes under that type of analysis, this Article concludes with recommendations to avoid these problems in the future.

Maturing Patent Theory from Industrial Policy to Intellectual Property

We have always known that technological progress is important and this country has always aimed to promote it. A large part of that responsibility has fallen on the shoulders of the patent system. Embarrassingly, despite over two hundred years of experience, we still do not actually know if the patent system helps or hinders technological progress. This Essay argues that the problem is not the patent system but rather patent theory. Patent theory suffers from three linked problems: exceptionalness, indeterminacy, and animosity. First, patent law is seen as a necessarily unique exception to the overall market economy. By artificially making patenting a profitable activity, the patent system is a form of industrial policy that aims to encourage people to enter the risky business of inventing. Second, we have never confidently been able to conclude that the benefits of this industrial policy outweigh its costs. Third, and perhaps just as important, that story inherently creates animosity among important interest groups. The resulting ongoing indeterminacy and animosity have prevented the patent system from maturing into an accepted, stable legal institution. We can and must do better. We need an institution that is stable, reliable, and accepted. This Essay argues that we should reject the long-standing “legal incentive” narrative and begin looking for a better alternative. This Essay points toward an accepted, stable model sitting in plain sight: traditional property. We have (incorrectly) thought that traditional property and its economic system for exchange cannot provide guidance for the exotic nonrival world of the patent system. This Essay aims to show that those assumptions are wrong, and it begins outlining a patent narrative where patents are seen as an important and natural extension of traditional property and indeed the overall economy of tangible goods. There are good reasons to think that such a system might provide what current patent theory cannot: the basis for a determinate and accepted patent system.

Maritime Piracy and the Impunity Gap: Insufficient National Laws or a Lack of Political Will?

Nations are not prosecuting piracy suspects with any regularity. One reason cited for this culture of impunity is the lack of domestic legislation to facilitate the prosecution of suspected pirates. However, universal jurisdiction over piracy has existed for more than one hundred years, and most nations are parties to the United Nations Convention on the Law of the Sea (UNCLOS) and the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA Convention), both of which encourage nations to cooperate in prosecuting acts of maritime piracy. Given this legal framework, should we not expect that nations would have domestic laws criminalizing piracy and would use those laws to try the pirates they have gone to such lengths to capture? This Article explores these questions by examining the domestic antipiracy laws in about fifty states for which information is available in English. The analysis supports a conclusion that on the whole states lack the political will to share in the burden of prosecuting pirates because relatively few states have enacted comprehensive antipiracy laws that include a framework for exercising universal jurisdiction over pirate attacks. The analysis also shows that the laws states have enacted may not be sufficient to allow for a successful prosecution for today's pirates. Although states may have many reasons to sit back and wait for others to prosecute maritime piracy offenses, this Article concludes that all states must embrace their duty to share in the burden of prosecuting pirates, which means that all states must first pass the necessary domestic laws criminalizing maritime piracy.