t Lawyer, Covington & Burling. A.B. 1970, Harvard University; J.D. 1980, University of California, Berkeley; D.E.A. 1982, University of Paris 2. I would like to thank Klaus Burmeister, Reed Dickerson, Willy Fletcher, Oscar Garibaldi, Tim Hester, William Logan, David Remes, Simon Schneebalg, and Jim Snipes for their perceptive suggestions, not all of which I was wise enough to accept. I would also like to thank Mary Keene for her research assistance. 1 See, e.g., Beardsley, Beware of, Eschew and Avoid Pompous Prolixity and Platitudinous Epistles.!, 16 CAL. ST. B.J. 65 (1941); Beardsley, Wherein and Whereby Beardsley Makes Reply to Challenge, 16 CAL. ST. B.J. 106 (1941); Bowman, Are Lawyers Lousy Writers?, 6 GA. ST. B.J. 285 (1970); Dick, Legal Language, 2 CAN. B.J. 204 (1959); Gerhart, Improving Our Legal Writing: Maxims from the Masters, 40 A.B.A. J. 1057 (1954); Kanter, Effective Legal Writing-Some Thoughts and Reflections on Learning and Teaching, 42 CHI. B. REC. 112 (1960); Kellog, A Plan for Drafting in Plain English, 56 CAL. ST. B.J. 154 (1981); Rossman, The Lawyers' English, 48 A.B.A. J. 50 (1962); see also Lavery, The Language of the Law (pts. 1 & 2), 7 A.B.A. J. 277 (1921), 8 A.B.A. J. 269 (1922); O'Hayre, A Look at Gobbledygook, 8 L. OFF. ECON. & MGMT. 97 (1967); Writing It Right: A Symposium, 15 PRAC. LAW. 33 (1969). 2 See, e.g., R. FLESCH, How TO WRITE PLAIN ENGLISH (1979); R. GOLDFARB & J. RAYMOND, CLEAR UNDERSTANDINGS: A GUIDE TO LEGAL WRITING at x-xi

The developing litigation finance industry is applauded by those who champion its access-granting and bargaining-power-equalizing functions for low-income plaintiffs in civil suits, and derided by those who warn of its unsavory business practices and interference with settlement efforts. With no current body of law adequately addressing the potential problems this burgeoning industry creates, it is vital to develop an approach to litigation finance that protects both the integrity of the settlement process and consumer interests. Such an approach simultaneously must avoid excessive regulation that effectively hinders court access by precluding disadvantaged plaintiffs with viable claims from having their days in court. Applying systems thinking to the field of litigation finance and its effect on settlement reveals a simple objective that would best achieve the necessary balance between this new field’s angels and demons: reducing the time delay currently plaguing civil courts. Part I of this Comment explores the general structure, history, and current status of litigation finance, identifying the circumstances that stimulated its creation and describing its prototypical operation. Part I also briefly reviews existing legal doctrines that have been, or could potentially be, used to regulate litigation finance, including champerty, usury, and contract law. Part II examines the widely diverging viewpoints about the litigation finance industry, focusing in

The employment relationship is governed largely by contract, but with a heavy overlay of “rights”: minimum terms and individual rights that are established by external law and are typically nonwaivable. But some terms of employment are governed neither by ordinary contract nor by ordinary rights, nor even by ordinary waivable rights. Both of the two most controversial contractual instruments in employment law today—non-compete covenants and mandatory arbitration agreements—take the form of written contracts; both waive important employee rights (the right to compete postemployment, the right to litigate future claims); and both are subject to substantive criteria of validity that are set by external law. Both bodies of law may be usefully described as recognizing “conditionally waivable” rights. This Article aims first to show structural parallels between non-compete covenants and mandatory arbitration agreements that place them at a distinct intermediate point along the spectrum between nonwaivable rights and ordinary contract. Second, it seeks to uncover a common logic underlying the law’s choice of this particular hybrid of rights and contract. The linchpin of that common logic lies in the threat that an unregulated waiver of one right (the right to compete or to litigate future claims) poses to adjacent employee rights that the law deems nonwaivable. Third, this Article deploys that underlying logic to offer a critical assessment of the law governing non-competes and arbitration agreements. Finally, this Article tentatively explores the broader potential usefulness of conditional waivability as a way of regulating some terms of employment. The intriguing potential of conditional waivability lies in its injection of some of the virtues of contract—especially flexibility and variability in the face of widely divergent and changing circumstances—into the pursuit of public goals and the realization of rights in the workplace.

Welfarism is the principle that policy should be based solely on individual well-being with no reference to fairness or rights. The propriety of this approach has recently been the subject of extensive debate within legal scholarship. Rather than contributing (directly) to this debate, we identify and analyze a problem within welfarism that has received far too little attention. Call this the ante/ex problem. The problem arises from the combination of uncertainty - an inevitable feature of real policy choice - and a preference for equality. If the policymaker is not a utilitarian, but rather has a social welfare that is equity-regarding to some degree, then she faces the following choice: Should she care about the equalization of expected well-being (the ex ante approach), or should she care about the expected equalization of actual well-being (the ex post approach)? Should she focus on the equality of prospects or the prospects for equality?In this Article, we bring the ex ante/ex post problem to the attention of legal academics, provide novel insight into when and why the problem arises, and highlight legal applications where the problem figures prominently. We ultimately conclude that welfarism requires an ex post approach. This is a counterintuitive conclusion because the ex post approach can conflict with ex ante Pareto superiority. Indeed, the Article demonstrates that the ex post application of every equity-regarding welfare function - whatever its particular form - must conflict with ex ante Pareto superiority in some choice situations. Among other things, then, the Article shows that legal academics must abandon either their commitment to welfarism or their commitment to ex ante Pareto superiority.

Market-share liability has been one of the most controversial doctrines in tort law, with a strong plurality of courts rejecting the doctrine on the ground that it radically departs from the fundamental tort principle of causation. Courts that have adopted this liability rule, though, believe they are adhering to the principle of causation. In the first case to adopt market-share liability, the California Supreme Court claimed that the liability rule is grounded upon an extension of alternative liability, a doctrine that has been accepted by virtually all jurisdictions. The court never adequately explained how alternative liability can be modified to yield market-share liability, and the only explanation provided by torts scholars involves redefining the tort right to permit compensation for tortious risk, conditional upon the occurrence of injury, rather than for the injury itself. However, courts do not conceptualize the tort right in these terms, for otherwise the doctrine of market-share liability would be uncontroversial. As this Article shows, marketshare liability can be derived from alternative liability in a manner that neither redefines the tort right nor departs from the principle of causation. Alternative liability permits the plaintiff to prove causation against the group of defendants. This characterization of the causal rule has been recognized by some torts scholars, but has never been justified. The Article shows that evidential grouping is a defensible principle implicit in numerous cases involving analogous causal problems, including the asbestos cases. Evidential grouping not only explains the doctrine of alternative liability, it shows how a modification of that liability rule yields market-share liability largely for reasons given by the California Supreme Court. This conceptualization of alternative liability and market-share liability also explains the otherwise puzzling liability rule adopted by courts in the asbestos

The rise of the Internet has changed the First Amendment drama, for governments confront technical and political obstacles to sanctioning either speakers or listeners in cyberspace. Faced with these challenges, regulators have fallen back on alternatives, predicated on the fact that, in contrast to the usual free expression scenario, the Internet is not dyadic. The Internet's resistance to direct regulation of speakers and listeners rests on a complex chain of connections, and emerging regulatory mechanisms have begun to focus on the weak links in that chain. Rather than attacking speakers or listeners directly, governments have sought to enlist private actors within the chain as proxy censors to control the flow of information. Some commentators have celebrated such indirect methods of governmental control as salutary responses to threatening cyberanarchy. This Article takes a more jaundiced view of these developments: I begin by mapping the ubiquity of efforts to enlist Internet intermediaries as proxy censors. I emphasize the dangers to free expression that are likely to arise from attempts to target weak links in the chain of Internet communications and cast doubt on the claim that market mechanisms can be relied upon to dispel them. I then proceed to explore the doctrinal resources that can meet those dangers. The gambit of enlisting the private sector to establish a system to control expression is not new in the United States. I argue that the First Amendment doctrines developed in response to the last such focused effort, during the McCarthy era, provide a series of useful starting points for a First Amendment doctrine to protect the weak links of the Internet.

The public trust doctrine provides that government holds title to certain lands and waterways in trust for the public benefit and public use. While the common law doctrine varies from state to state, historically it “requires that . . . trust land[s] be accessible and used for a public purpose; that [they] be put to . . . uses appropriate to the resource; and, in some cases, that [they] not be sold.” It does not, however, foreclose the private lease and license of public lands; rather, it requires that such lands be utilized primarily for the public benefit, and only incidentally for private benefit. Thus, fundamentally, the public trust doctrine incorporates a public use test. The New York public trust doctrine, as it applies to public parkland, has nebulously defined “public benefit” and “public use” as a “park,” in contrast to a “non-park,” use. In this Comment, I argue for

INTRODUCTION 232 I. CLINICAL TRIALS MOVE ABROAD—BUT HUMAN SUBJECTS PROTECTIONS DO NOT FOLLOW 235 A. Utility of Extraterritorial Research to Multinational Corporations ......236 B. Utility of Medical Research to Developing Countries 241 C. Inadequate Enforcement of an Informed Consent Requirement Permits Exploitation 242 II. HUMAN SUBJECTS CAN ENFORCE PROTECTIONS UNDER THE ATS 246 A. Trovan Litigation as a Test Case 247 B. Judicial Interpretation of the ATS Leaves Room for Expansion of the Federal Common Law 248 1. Historical Perspective on the ATS 250 2. Filartiga and Tel-Oren 252 3. The Sosa Standard Defined: A Jurisdictional Statute Recognizing Federal Common Law 254 III. INFORMED CONSENT MEETS THE SOSA STANDARD FOR A NORM OF CUSTOMARY INTERNATIONAL LAW 255 A. Human Subjects Protections Require Informed Consent 257 1. Nuremberg Code 257 2. Declaration of Helsinki 259 3. CIOMS International Ethical Guidelines for Research Involving Human Subjects 262

If there were no juries, would there be a law of evidence?And should there be?These questions are not about whether this or that rule of evidence owes its existence to the institution of the jury, and are thus not about whether particular evidence rules should be modified or eliminated when juries are not present.Nor are they about those many rules of evidence that are premised on such wildly mistaken folk wisdom about jury behavior that they are in desperate need of modification or elimination in light of what we now know from the social sciences about how people in general and juries in particular actually decide and deliberate.Rather, my question is whether the law of evidence, in the large, is so substantially a product of the institution of the jury itself that if juries did not exist, then vast swaths of evidence law would, and should, not exist as well.This question is not merely of academic or historical interest.Numerous American trial judges, echoing what scholars since Jeremy Bentham have urged, 1 essentially discard large chunks of the law of evidence when they sit without a jury.2 Time and again, especially in civil litigation and more than occasionally even in criminal cases, objections to the admissibility of evidence are met with the judicial re-

In this article, we challenge the traditional view that entrepreneurial plaintiffs' class action lawyers operating entirely according to their own economic self-interest serve no social utility, or worse yet, tremendous disutility. In seeking to counter this notion, we try to show that the agency costs problem long derided in class action practice is overblown: in the majority of small-claims class actions, there is no legitimate reason to care whether class members are being undercompensated (or compensated at all), nor any reason to worry that entrepreneurial lawyers are being overcompensated. Rather, we assert that the driving force behind class action practice ­and any effort to reform, reduce, redirect that practice ­should be deterrence. All that matters, we argue, is whether the defendant-wrongdoer is forced to internalize the social costs of its actions ­not to whom it pays those costs.