Vol. 101 Issue 3

In the brief, conclusory opinion of Marsh v. Chambers, the Supreme Court upheld the Nebraska state legislature’s policy, which dated back over 100 years, of opening its meetings with a prayer. The prayer did not advance the tenets of any single faith. In deciding the case, the Court relied on the fact that prayer by “legislative and other deliberative public bodies” was a longstanding and continuous tradition for both the federal Congress and the Nebraska legislature. Therefore, the issue of school board prayer lies at the intersection of the “prayer in school” prohibition and the “legislative prayer” exception.
Lower courts have struggled with the meaning of Marsh since the case was decided. As will be seen by the widely differing results in school board prayer cases, circuit courts have particularly struggled with whether Marsh applies to local legislative bodies and with determining what content is permissible for legislative prayer. This Note argues that the Marsh exception, not the Lee line of cases, should govern school board prayer. But, relying on the facts of Marsh, the legislative prayer exception should be limited by a two-part legal test, which would have the effect of making school board prayer unconstitutional in all but the rarest cases. Legislative prayer, including school board prayer, should be upheld only if it is (1) nonsectarian and (2) part of a continuous tradition that was constitutional when it began because it predates the explicit incorporation of the Establishment Clause against the states in Everson v. Board of Education in 1947.18 This test is necessary because the circuit courts have varied widely on the meaning of Marsh since the case was decided and because many circuit courts have ignored the facts that led to the creation of the exception in the first place.

This Note argues for a new, opt-in legal regime that would provide clear legal safeguards for hosts of user-generated content, while simultaneously providing financial incentives for copyright-content creators. This new regime would be based partially on the principles behind ex ante regulation and self-regulation, rather than the ex post enforcement that typically governs in United States copyright law. It would provide hosts of user-generated content with the option to pay a fee in exchange for the right to host certain copyrighted works uploaded by users, eliminating the fear of a lawsuit for contributory infringement or vicarious liability. The opt-in nature of the regime would protect the current safeguards for content hosts contained within the DMCA while allowing those who choose to abide by the new regime to gain additional legal protections.

Our law currently treats records of our reading habits under two contradictory rules: rules mandating confidentiality and rules permitting disclosure. Recently, the rise of the social Internet has created more of these records and more pressures on when and how they should be shared. Companies like Facebook, in collaboration with many newspapers, have ushered in the era of “social reading,” in which what we read may be “frictionlessly shared” with our friends and acquaintances. Disclosure and sharing are on the rise.
This Article sounds a cautionary note about social reading and frictionless sharing. Social reading might have some appeal, but the ways in which we set up the defaults for sharing matter a great deal. Our reader records implicate our intellectual privacy—the protection of reading from surveillance and interference so that we can read freely, widely, and without inhibition. I argue that the choices we make about how to share have real consequences and that frictionless sharing is neither frictionless nor is it really “sharing,” at least as we typically understand the term. The sharing of our reading habits is special. Such sharing should be conscious and only occur after meaningful notice.
The stakes in this debate are immense. We are quite literally rewiring the public and private spheres for a new century. Choices we make now—about the boundaries between our individual and social selves, between consumers and companies, and between citizens and the state—will have unforeseeable ramifications for the societies our children and grandchildren inherit. Even the setting of defaults we can opt out of will shape behavior and establish baselines of “normal” for our societies. We should make choices that preserve our intellectual privacy, not destroy it. This Article suggests practical ways to do just that.

In this Article, we suggest that it might be possible to improve the value of patent challenges even without increasing their accuracy. Put simply, we propose raising the stakes involved in patent litigation. A patent owner who prevails at trial should collect enhanced rewards, above and beyond the damages the owner would normally be paid in compensation for the infringement. A patent owner whose patent is invalidated at trial should be forced to pay significantly enhanced penalties. At first glance, our proposal might seem entirely counterintuitive. If patent adjudications are riddled with errors, one would think that it would be preferable to lower the stakes involved, rather than increase them. Scholars and courts have generally confined themselves to that approach.
Yet contrary to the conventional wisdom, we demonstrate that enhanced rewards and penalties can correct many of the flaws inherent to patent challenges even without affecting the accuracy of the adjudications themselves. They accomplish this by restoring patent holders’ net expected trial outcomes to appropriate levels. Enhanced rewards would compensate holders of valid, valuable patents for the risks they run at trial. This would incentivize the optimal amount of research and innovation, as well as continued research on the most socially valuable inventions. At the same time, enhanced penalties would reduce or eliminate invalid patent owners’ opportunities to earn positive returns at trial, vastly diminishing their incentives to assert their invalid patents in the first place.
The enhanced rewards and penalties we propose would thus allow our imperfect patent system to mimic one in which courts erred less frequently. Patent owners—be they genuine innovators or patent trolls—and their competitors would behave as if they could rely upon the courts to reach the correct outcome in essentially every case. The system would generate substantial benefits to innovation and competition at minimal cost. Where direct efforts to improve judicial accuracy have failed, raising the stakes of patent cases might yet succeed.

Notwithstanding its obvious importance, Medicare is almost invisible in the legal literature. Part of the reason is that administrative law scholars typically train their attention on the sources of external control over agencies’ exercise of the vast discretion that Congress so often delegates to them. Medicare’s administrators, however, wield considerably less policy discretion than the agencies that feature prominently in the legal commentary. Traditional administrative law thus yields slim insight into Medicare’s operation.
But questions about external control do not—or at least they should not— exhaust the field. An old and often disregarded tradition in administrative law focuses not on external constraints, but on the internal control measures that agencies employ to shape the behavior of the bureaucrats who implement government programs on the ground. A robust set of internal controls is necessary whenever central administrators seek to align the actions of line officers with programmatic goals. And they are all the more necessary when, as is so often the case in the modern administrative state, implementation authority is vested in private actors, not government officers.
So it is with Medicare, whose street-level bureaucrats are hundreds of thousands of private physicians with strong professional commitments and no particular allegiance to governmental priorities. Yet Congress’s persistent failure to address weaknesses in Medicare’s administrative structure has stymied a series of major reform efforts that have sought to make the program’s physicians more attentive to the cost and quality of the medical care for which it pays. This dismal history suggests that crafting an effective internal law for Medicare will require Congress to refashion the program around private organizations with the capacity, incentives, and legitimacy to align the practice patterns of private physicians—its bedside bureaucrats—with federal priorities. Measured against that baseline, the set of Medicare reforms included in the Affordable Care Act is a disappointment. A more muscular, thoughtful, and sustained effort is needed.

In 2011, Kevin Rose, the influential founder of the website Digg, caused a stir when he took to his video blog to share a “random idea.” “This might be potentially the dumbest . . . least vetted idea that I’ve ever thrown out there,” Rose said, “But…what if we could make credit cards a little bit more social?” Rose suggested a system in which trusted friends would invite each other into an extended credit network sponsored by a bank. The more friends you could invite and the better credit those friends had, the lower your own interest rate would be and the higher your available credit. Contrary to delinquency to a large, faceless bank, where the only real consequence of missed payments would be a slight credit-score reduction, Rose argued that your trusted friends in the newly formed credit circle would be loath to miss payments because they would be letting you and the network down. Peer pressure and tight social bonds would provide far greater enforcement than the coercive power of a large institution ever could. It would be, in a sense, a return to a preindustrial small-town ideal where credit was extended on a handshake, based on one’s standing in a close-knit community.
As our commercial and social lives are increasingly mediated through digital technologies, companies large and small have begun to make credit “social,” and not only in the seemingly benign way proposed by Rose. By collecting and mining the enormous wealth of personal data generated by performing the mundane tasks of daily existence—shopping, reading, socializing—credit card companies, large banks, and a host of start-up companies in the data-collection and lending fields are at the cusp of a revolution in the way they determine and price risk in credit markets. In the coming years, who you know, where you shop, and what you read may dramatically affect your access to credit. Although much scholarly attention has been paid to the privacy implications of online data mining and aggregation, or “dataveillance,” for use in targeted behavioral advertising, relatively little attention has been focused on the adoption of these techniques by lenders. And although the efficiency and accuracy justifications for total access to consumer information may be at their highest when determining credit risk, these practices also raise unique concerns regarding our privacy expectations in digital space. The heightened potential for discrimination facilitated by online tracking deserves closer attention. This Note seeks to address some of these concerns.

I have been assured that it was open to me to speak on a topic of my choice on this memorable evening. However, it quickly became plain to me that the annual Memorial Lecture has been set up to interrogate topics that were of special interest to Senator Hart.
I venture the proposition that had Senator Phil Hart lived in South Africa, he would have weighed in on the side of those who opposed the racial exclusion and social injustice of colonialism and apartheid. He would have cheered us on and backed our struggle for democracy and social justice. He would have been well pleased to see a downtrodden people taking up cudgels in order to liberate themselves. He would have well understood that it takes the solidarity of good women and men to overcome an oppressive regime. I must quickly add that had he pursued his crusades of the 1960s and 1970s in my country, like Nelson Mandela, and like me at the age of fifteen, he would have fallen foul of the retrograde orthodoxy of apartheid. Put bluntly, he would have been jailed for a few decades in that infamous prison known as Robben Island.
I therefore trust that it would be a befitting tribute to the memory of this great Michigan Democrat to tell how we are transforming our land from the heart of apartheid darkness towards our cherished, just society. To that end, I set out briefly the juridical features of apartheid shortly before its demise in 1994. This I do only to pave the way for my core concern. In broad brush strokes, I hope to trace key trends of our nascent constitutionalism and jurisprudence that have supplanted the evil apartheid legal order. As I draw close to the end, I highlight the primary challenges to our evolving democratic constitutionalism, followed by a few concluding remarks.

The last time I spoke at Georgetown University Law Center was on the occasion of the eightieth anniversary of the Legal Adviser’s Office, known affectionately at the State Department as “L.” I have now been the Legal Adviser at the State Department for more than three and a half years. During that time, at nearly every public event I attend, I find myself being asked questions about one issue: armed conflict. Nearly every question I am asked involves Guantanamo, Afghanistan, cyber war, detention, and targeting practices. While these key areas raise tremendously important legal questions, in fact, they do not occupy even half of my time. More than half of my time is spent on a completely different set of issues, which I almost never get a chance to talk about publicly.
So today, let me talk not about international conflict, but about the other side of what I do: the legal aspects of international cooperation and engagement. Specifically, let me address how we in the Obama Administration have handled a broad set of activities that can be grouped loosely under the rubric of “twenty-first-century international lawmaking.”
Now I would expect that many, if not most, of you have already studied, or even taught, this topic, whether in a constitutional law, international law, national security law, or foreign relations law class. You all know the hornbook law on this subject: the United States can make law through international cooperation via one of three domestic law devices: (1) an Article II treaty, advised and consented to by two-thirds of the Senate;2 (2) a congressional– executive agreement, which involves passage of a statute by a majority of both houses and signature by the President; and (3) under certain circumstances, by sole executive agreement, concluded within the scope of the President’s independent constitutional authority. Indeed, sketching this tripartite framework of Article II treaty, congressional–executive agreement, and sole executive agreement is Lesson I of Foreign Relations Law 101. Over my academic career, those core lessons constitute a law school course that I have often taught and law review articles that I have published.

In 2006, Congress passed the Unlawful Internet Gambling Enforcement Act (UIGEA), prohibiting the knowing receipt of funds for the purpose of unlawful gambling. The principal consequence of the UIGEA was the shutdown of the burgeoning online poker industry in the United States. Courts determine whether a game is prohibited gambling by asking whether skill or luck is the “dominant factor” in the game. We argue that courts’ conception of a dominant factor— whether chance swamps the effect of skill in playing a single hand of poker—is unduly narrow. We develop four alternative tests to distinguish the impact of skill and luck, and we test these predictions against a unique data set of thousands of hands of Texas Hold ‘Em poker played for sizable stakes online before the passage of the UIGEA. The results of each test indicate that skill is an important influence in determining outcomes in poker. Our tests provide a better framework for how courts should analyze the importance of skill in games, and our results suggest that courts should reconsider the legal status of poker.