In Bell v. Wolfish, the United States Supreme Court upheld visual body-cavity strip searches on pretrial detainees but called for a balancing of privacy and security interests. For the three decades following Bell, courts routinely read in a reasonable suspicion requirement as part of that balance. That changed in 2008 when the United States Court of Appeals for the Eleventh Circuit held that the Fourth Amendment permits strip searches of all arrestees, regardless of whether there is any reasonable suspicion that an arrestee possesses contraband. In 2010, the United States Courts of Appeals for the Third and Ninth Circuits followed suit. In light of the recent split, the Supreme Court granted certiorari to determine whether the Fourth Amendment permits a jail to conduct a suspicionless strip search of every individual arrested for any minor offense regardless of the circumstances. This Comment recounts the context of Bell, traces the courts' previously uniform interpretation of that decision, and explores this emerging debate, ultimately concluding that institution-specific security concerns could be a factor worthy of great weight in the Bell balancing equation.
False Efficiency and Missed Opportunities in Law and Economics
This Article points out a simple flaw common to many law-and-economics analyses, ranging from fundamental models like the Hand Formula to narrower arguments like those that oppose the doctrine of unconscionability.
The flaw is straightforward: economic analyses of law often assume, either implicitly or explicitly, that when it is more efficient for an activity to occur than for it not to occur, it is efficient for legal rules to encourage the activity. Even on grounds of efficiency alone, however, knowing in isolation whether an activity produces more wealth than its absence is insufficient to conclude that the activity is efficient. The determination of efficient legal rules requires an answer to a further question too often neglected by legal economists: what are the activity's alternatives? Even if an activity is more efficient than its absence, it may produce less wealth (perhaps significantly less wealth) than its alternatives, once its harms are taken into account. Encouraging all activities that appear to produce wealth on their own runs the risk of encouraging opportunistic behavior whose effect is more to transfer wealth than to create it.
As a simple example, a legal regime that followed the Hand Formula would encourage businesses to earn $100,000 by causing $95,000 worth of unavoidable harms to others; that incentive alone, while probably objectionable for other reasons, is not inefficient because, instrumentally speaking, the $100,000 social gains justify the $95,000 social losses. But a rule based on the Hand Formula would also encourage economic actors to engage in that $100,000-earning activity rather than one that paid $90,000 but caused no harms; that incentive is inefficient.
Some economic analyses acknowledge related points, but the law-and-economics movement insufficiently understands the flaw that this Article describes. Similarly, critics of the law-and-economics movement—while aware of other fundamental flaws in legal-economic analysis, such as the inapplicability of the rational-actor model in many circumstances—do not readily enough engage economic models on their own terms. This Article attempts to remedy those oversights, and in doing so, it suggests greater caution in applying economic reasoning to law.
Unnatural Resource Law: Situating Desalination in Coastal Resource and Water Law Doctrines
This Article offers the first legal analysis of desalination, the process of converting saltwater into freshwater. Desalination represents a key climate change adaptation measure because the United States has exploited nearly all of its freshwater resources, freshwater demands continue to grow, and climate change threatens to diminish significantly existing freshwater supplies. However, scholarship has yet to address the legal ambiguities that desalination raises in the context of property, water law, and coastal resource doctrines.
This Article addresses these ambiguities and suggests the legal adaptations necessary to accommodate desalination as a climate change adaptation. Under current legal doctrines, the chain of title for desalination is uncertain. Emerging desalination projects face questions about the entity with proprietary authority over seawater, the nature of the right to intake seawater, the nature of a desalinator's interest in desalinated water, and the nature of the interest that a utility, upon receiving water from a desalinator, holds in the desalinated water. This Article argues that legislation is necessary to clarify this chain of title both because existing common law doctrines are insufficient to resolve these issues and because development of new common law cannot keep pace with emerging desalination projects. Thus, the Article proposes legislation that (1) clarifies federal sovereignty over saltwater, (2) considers the public trust doctrine in creating a permit scheme for the intake of saltwater, (3) recognizes desalinators as service providers rather than holders of private property in desalinated water, and (4) recognizes municipal utilities as holding vested property rights in desalinated water. Finally, the Article proposes that this clarified chain of title for desalination can serve as a model for developing ecosystem service markets, public trust doctrine applications, and property theories aimed at adapting other resource doctrines to cope with climate change.