In this paper, we consider statutory interpretation from the perspective of positive political theory (PPT) looking, first, at the best framework for understanding the relationship between duly authorized lawmakers and the judge/interpreters. We build upon the modern literature of communication theory to support the familiar view that a statute is best understood as an act of communication by the legislature to an audience. PPT helps us to draw various lessons for modern interpretation debates from this assumption. We consider several of these lessons in our paper, and we focus especially on the hoary debate over the use and utility of legislative history in construing ambiguous statutory language.

The distinction between substance and procedure pervades academic thinking all the way down to its foundations. Substantive criminal law still holds its place in the sacred precincts of the first year curriculum. Criminal Law's cognate discipline is philosophy; the standard method of analysis is to measure general principles according to how well they track intuition's response to hypothetical cases. Criminal Procedure's cognate discipline is Constitutional Law; the standard method of analysis is to subject the operation of the criminal justice system to the same rhetoric of text, history, and precedent that frames the issues in separation of powers or freedom of speech cases. The philosophy mediated by doctrine is political, rather than moral theory.

In trial level courthouses, however, the distinction fades, as the defendant trades his procedural rights for reductions in his substantive liability. The substantive law endows the prosecution with the ability to charge the same conduct at many different levels of potential punishment. The procedural law also endows the defense with its stock in trade - the rights to suppression motions, discovery, elaborate jury selection procedures, confrontation of the victim, and so on.

These endowments are dynamic rather than static. A legislature that adopts a three-strikes law increases the prosecution's bargaining power. A court that reads the confrontation clause to bar excited utterances from the government's proof increases the defendant's bargaining power. In the trenches of criminal justice, these entitlements may well be traded off, erasing the distinction between substance and process.

Admirable scholarship has exposed this basic dynamic. Debate continues about two great issues. First, is this state of affairs normatively defensible or not? Second, if the present relationship between substance and procedure is undesirable, what, if anything, can be done about it?

In this paper I take up the second question, which seems to me to have drawn too little systematic attention (perhaps because it is so daunting). The literature has devoted considerable debate to alternatives to plea bargaining. But these discussions have been self-contained; they do not take account of the substance/procedure feedback loop already in place. The principal point against proposals to ban bargaining is not that we should not but that we cannot; self-interested, repeat-playing actors in the criminal justice process will find ways to bargain. The debate, naturally enough, has not gotten to the point of "what if we succeeded in banning plea bargaining?"

As things stand, the prohibition of bargaining would leave prosecutors with unregulated discretion to select charges from overbroad and draconian criminal codes. Prohibiting bargaining would mean that defendants could not trade their constitutional procedural entitlements off against the state's substantive criminal law entitlements. The new model would be one in which defendants, facing decades in prison for relatively modest crimes, would stand trials they have little chance of winning.

The discussions on plea bargaining have the same isolated quality as the discussions on individual bodies of criminal procedure doctrine. Of course they matter, in some cases; but the bigger picture is the relationship between substantive criminal law sentencing and the procedural rights of the defendant. So serious are the difficulties that I shall not - yet - defend any doctrinal reform on the ground that the relation between substance and procedure would be harmonized thereby. My task is one more modest, but I hope still useful. I aim to survey the possible strategies by which the system might escape the current impasse.

The possible strategies fall into five basic categories. First, we might continue what we seem to be doing now: increasing constitutional procedural entitlements in the hope of mitigating the excesses of the substantive criminal law. Second, we might give up on the constitutional distinction between substance and process by deconstitutionalizing procedure altogether, or at least to a dramatic degree. Responsible then for both substance and process, legislatures might strike a better balance than is produced by the current division of labor. Third, we might achieve the same sort of unification by constitutionalizing substance. Robust judicial review of substantive criminal legislation might curb overcriminalization, which might in turn lead the courts to develop a more rational body of procedural rights. Fourth, we might look for more rigorous restrictions on prosecutorial discretion, building on administrative law and experience with sentencing guidelines. Fifth, we might look for more rigorous restrictions on the defendants' right to waive procedural rights for substantive advantage.

What I hope to add to the scholarly conversation is a brief assessment of the promise and pitfalls that attend each of these strategies.

In this paper I want to focus on the Court’s characterization of statements elicited in violation of the Miranda warnings as not actually “coerced” or “compelled” but obtained merely in violation of Miranda’s “prophylactic rules.” This terminology has plagued the Miranda doctrine and puzzled and provoked many commentators since then-Justice Rehnquist utilized this label to describe and to diminish Miranda – and he was the first Justice ever to do so – thirty-one years ago

These problems will not be solved by glib references to market ideology that claims markets alone adequately regulate corporate behavior. Nor will these problems be solved by assuming that a few bad apples were responsible. Indeed, only by examining the environmental context in which decision making occurs will corporate ethics in the health care marketplace be furthered.

This article is a brief overview of the importance of an organization’s structure, policies and practices in the establishment of an ethical climate. An organization’s climate affects whether individual employees, as well as the leaders of the organization, make ethical or unethical decisions. Part II of this article begins by defining ethical climates and describes how they are ascertained. Part III discusses two contextual factors in more detail: workplace leadership and reward structures. Finally, this article concludes with some basic recommendations for motivating organizations to work toward creating ethical climates.

The Article begins in Part I, Introduction, with two observations. First, the function of procedure is to particularize general substantive norms so that they can guide action. Second, the hard problem of procedural justice corresponds to the following question: How can we regard ourselves as obligated by legitimate authority to comply with a judgment that we believe (or even know) to be in error with respect to the substantive merits?

The theory of procedural justice is developed in several stages, beginning with some preliminary questions and problems. The first question - what is procedure? - is the most difficult and requires an extensive answer: Part II, Substance and Procedure, defines the subject of the inquiry by offering a new theory of the distinction between substance and procedure that acknowledges the entanglement of the action-guiding roles of substantive and procedural rules while preserving the distinction between two ideal types of rules. The key to the development of this account of the nature of procedure is a thought experiment, in which we imagine a world with the maximum possible acoustic separation between substance and procedure.

Part III, The Foundations of Procedural Justice, lays out the premises of general jurisprudence that ground the theory and answers a series of objections to the notion that the search for a theory of procedural justice is a worthwhile enterprise. Sections II and III set the stage for the more difficult work of constructing a theory of procedural legitimacy.

Part IV, Views of Procedural Justice, investigates the theories of procedural fairness found explicitly or implicitly in case law and commentary. After a preliminary inquiry that distinguishes procedural justice from other forms of justice, Part IV focuses on three models or theories. The first, the accuracy model, assumes that the aim of civil dispute resolution is correct application of the law to the facts. The second, the balancing model, assumes that the aim of civil procedure is to strike a fair balance between the costs and benefits of adjudication. The third, the participation model, assumes that the very idea of a correct outcome must be understood as a function of process that guarantees fair and equal participation. Part IV demonstrates that none of these models provides the basis for a fully adequate theory of procedural justice.

In Part V, The Value of Participation, the lessons learned from analysis and critique of the three models are then applied to the question whether a right of participation can be justified for reasons that are not reducible to either its effect on the accuracy or its effect on the cost of adjudication. The most important result of Part V is the Participatory Legitimacy Thesis: it is (usually) a condition for the fairness of a procedure that those who are to be finally bound shall have a reasonable opportunity to participate in the proceedings.

The central normative thrust of Procedural Justice is developed in Part VI, Principles of Procedural Justice. The first principle, the Participation Principle, stipulates a minimum (and minimal) right of participation, in the form of notice and an opportunity to be heard, that must be satisfied (if feasible) in order for a procedure to be considered fair. The second principle, the Accuracy Principle, specifies the achievement of legally correct outcomes as the criterion for measuring procedural fairness, subject to four provisos, each of which sets out circumstances under which a departure from the goal of accuracy is justified by procedural fairness itself.

In Part VII, The Problem of Aggregation, the Participation Principle and the Accuracy Principle are applied to the central problem of contemporary civil procedure - the aggregation of claims in mass litigation. Part VIII offers some concluding observations about the point and significance of Procedural Justice.

A few scholars, however, have found reason to pause in their celebration of the initiative, finding shortcomings in its process, its outcomes, or both. In this paper we argue that initiatives will only infrequently improve the public’s welfare. We begin with a survey of the basic social choice and public choice critiques of the initiative process. We argue that, despite recent rigorous scholarly attention as to the effects of initiatives, we find little reason yet to reject the social and public choice criticisms of policy making via direct democracy. We then offer a series of anecdotes about the rise of crypto-initiatives, which are initiatives that use direct democracy as an instrument to achieve non-policy related goals. Finally, we conclude that the problems inherent in the initiative process are being magnified by the increase in crypto-initiatives and the rise of the crypto-political machines, the new 527 PACs, that sponsor them. Increasingly, the public welfare may be only an incidental consideration in the sponsorship, passage and implementation of initiatives. This in turns implies that we consider anew limiting or amending the initiative process.

This article has three parts. First, I introduce some basic concepts of network science, including such important ideas as nodes, links, random graphs, evolving networks, scale-free networks, small worlds, the rich get richer dynamic, node fitness, and clusters. Oddly enough, the mathematical tools that have proven most useful for studying networks (or at least scale-free networks) come from statistical mechanics, a branch of physics. Having introduced network theory in Part I, and having presented evidence that American case law is a scale-free network in Part II, I argue for the significance of this discovery in Part III. I hope that by the time they reach Part III, readers will already be realizing the potential richness of applying network theory to legal systems. In Part III, I describe some insights that appear from this application and suggest areas for future research.

The most famous hypothesis about the structure of law is that it is a seamless web. This old phrase, however, is just a metaphor we have used to grope for a reality we have not been in a position to express more precisely. Network science changes that. The Web of Law can be considered as a mathematical object whose topology can be analyzed using the tools pioneered by physicists and others who wanted to explore the structure of the Web and other real networks. The Web of Law has a structure very similar to that of other real networks, such as the Web and the network of scientific papers. The Web of Law is in substantial part a scale-free network, organized with hub cases that have many citations and the vast majority of cases, which have very few. The distribution of citation frequency approximates a power-law distribution, as is common with real scale-free networks, with truncations at either extreme of its distribution, which is also common.

Many promising hypotheses can be generated by considering the law as a scale-free network. State and federal systems can be examined empirically to measure how well integrated each is with itself, and with each other, and how this is changing over time. Legal authorities can be measured to determine whether their authority is emerging or declining. Institutional bodies, such as courts, can be examined in the same way. Clusters of cases, which will reveal the semantic topology of law, can be mapped to determine whether traditional legal categories are accurate or require reform. These methods can be used to develop computer programs to improve the efficiency of searching electronic legal databases. The topology of American law can be compared to that of other legal systems to determine whether legal systems share universal architectural features, and in what respects different systems are unique. Changing dynamics of the citation frequency and the fitness of particular cases can be studied over historical periods to test historiographical hypotheses. So, for example, Farber's hypothesis that changes in constitutional interpretation occur suddenly, and many others, may be tested rigorously. The dynamics of authority in law generally can be studied much more rigorously. The mere fact that law is a scale free, not a random network, suggests a high degree of intellectual coherence, contrary to what some critics have suggested. The shape of the degree distribution graph of the Web of Law, in its similarity to the scientific citation network, also suggests that cases age, in the sense of losing the ability to attract citations, over time, just as scientific papers do. Yet Supreme Court cases seem to age more slowly. How nodes age profoundly affects overall network structure and therefore affects the shape of the Web of Law. Network theory hints at complex, but analyzable, interactions between the legal doctrines of precedent, and the systems of common law and multiple sovereignties.

Because law grows and because it has doctrines of authority, it creates a network of a certain shape, which spontaneously organizes itself. This is the product of laws that govern networks of computers as inexorably as they govern networks of cases, laws arising from the underlying mathematics of networks. Legal databases, which are huge, precisely documented, and readily accessible, present a perfect opportunity for the application of network science. This research would produce new knowledge of general jurisprudence that has simply been impossible until now, when we have the necessary advances in network science, the fast computers, and the existence of a complete record of the legal network in electronic form, waiting to be explored.

The manifest indeterminacy of lawyerly arguments suggests that in this area, premises are more likely to be derived from favored conclusions, not the other way around. So then what determines which conclusions– and hence which premises– lawyers and judges and scholars select? The article suggests that our conclusions are largely dictated by commitments at the second level– commitments to what we take to be the essential meaning of America. Moreover, the historical and interpretive indeterminacy associated with these commitments further suggests that (contrary to liberal wisdom which urges that public or constitutional reasoning be detached from people’s various “comprehensive doctrines”), commitments at the second level are in turn influenced to a significant extent by what is believed or at least presupposed at the third level of basic philosophy or theology.

Hence the comparison of our establishment clause discourse to an iceberg: what we see is the most insubstantial part, and the real mass and force are largely out of sight. The article concludes that the valuable work in the area of religious freedom– the work that has a chance to be illuminating and not merely polemical– will be work that probes those deeper connections and presuppositions.

Both proposals mark a shift in the scholarship addressing the problem of gatekeeper liability. Until recently, scholarship on gatekeepers had focused on reputation – not regulation or civil liability – as the key limitation on gatekeeper behavior. Indeed, many scholars have argued that liability should not be imposed on gatekeepers in various contexts, and that reputation-related incentives alone would lead gatekeepers to screen against fraudulent transactions and improper disclosure in an optimal way, even in the absence of liability. From a theoretical perspective, this article is an attempt to move the literature away from a focus on reputation to an assessment of a potential reinsurance market for securities risks, where gatekeepers would behave more like insurers than reputational intermediaries.