Scott Luftglass, Crossroads in Cambodia: The United Nation's Responsibility to Withdraw Involvement from the Establishment of a Cambodian Tribunal to Prosecute the Khmer Rouge, Virginia Law Review, Vol. 90, No. 3 (May, 2004), pp. 893-964

In comparative constitutional discourse, Americans are from Mars and Europeans from Venus; we eagerly tell our European counterparts about the U.S. constitutional experience, but rarely do we listen when they talk to us about their own. Whereas Europeans routinely examine U.S. constitutionalism as an illuminating point of comparison or contrast, as Americans, we seem convinced that we have nothing to learn from looking abroad. This Article challenges that assumption. In particular, it argues that American courts and scholars have overlooked an important alternative to the dominant interpretation of the division of powers in the United States by ignoring the theory and practice of federalism in the European Union and in Germany.

David J. Garrow, "Happy" Birthday, "Brown v. Board of Education?" "Brown's" Fiftieth Anniversary and the New Critics of Supreme Court Muscularity, Virginia Law Review, Vol. 90, No. 2 (Apr., 2004), pp. 693-729

Why do we have more than one form of intellectual property rights? Why are the structures of patent and copyright forms so different? What factors influence the optimal structure of each form? We can move toward addressing some of these enduring puzzles and understanding the effects of the differences between intellectual property forms by examining the presence and distribution of information costs in the propertarian relationship. In this article, I explore the relationship between the nature of protected intellectual goods and differences in the structures of patent and copyright. Intellectual property rules in patent and copyright can make it easier or more difficult for parties to gather and comprehend information regarding protected goods. The literature on the law of organizations has recognized that it is most efficient to align transactions, which differ in their attributes, with organizational forms, which differ in structural ways, so as to minimize transaction costs. I argue that similarly, when intellectual property forms are structured to minimize information costs they are more efficient, all else equal, than when they are not so structured. Examining the presence and distribution of information costs can suggest ways in which we might increase efficiency in intellectual property.

The Constitution instructs the President of the Senate to open the ballots submitted by members of the Electoral College, but it provides little guidance when a ballot turns out to be defective. This article provides the first in-depth consideration of two early precedents. Both Vice-President John Adams and Vice-President Thomas Jefferson confronted problems when counting the electoral votes in 1797 and 1801, respectively. Both men were placed in the awkward position of ruling on matters involving an election in which they were leading presidential candidates, but Jefferson's problem was more serious. In 1801, Georgia's electors cast their votes for Jefferson and Burr, but their ballots were in plain violation of the Constitution's explicit formal requirements. If Jefferson had ruled these votes invalid in his capacity as Senate President, one of the Federalist candidates, Adams or Pinckney, might well have emerged victorious from the House runoff required under the Constitution. But Jefferson used his authority as Senate President to exclude his Federalist competitors, restricting the runoff to a two-man race between himself and Aaron Burr. This allowed him to emerge victorious on the thirty-sixth ballot. Rumors of this episode occasionally surfaced during the nineteenth century, but this article presents indisputable documentary evidence demonstrating the irregularity of the Georgia ballot. After telling the story, we appraise its significance both as an act of constitutional statesmanship and as an enduring legal precedent that may guide future Senate Presidents as they confront the electoral college crises of the twenty-first century.

Increasingly, constitutional theorists are turning attention away from the modalities of constitutional interpretation (text, history, structure, etc.) and toward judicial outputs that, while featuring in constitutional adjudication, are something other than a court's determination of what the Constitution means. We might say that theorists are focusing less on constitutional meaning, more on constitutional doctrine. Despite this happy shift in emphasis, our collective understanding of the conceptual structure of constitutional doctrine remains woefully underdeveloped. For many, doctrine remains a conceptually undifferentiated mass of principles, reasons, tests, and frameworks. This is unfortunate, for no body of knowledge can long advance without self-critical classification. It is time, accordingly, to develop a functional taxonomy of constitutional doctrine. This Article takes a first and partial stab at such a taxonomy by distinguishing two components of judge-announced constitutional doctrine: statements of what the Court takes the Constitution to mean and instructions directing judges how to determine whether that meaning is complied with. Coining terms, I call the first type of doctrine a constitutional operative proposition, and the second type a constitutional decision rule. Drawing from such important recent Supreme Court decisions as Board of Trustees of the University of Alabama v. Garrett and Dickerson v. United States, this Article contends that vastly many constitutional doctrines are better understood not as judicial interpretations of the Constitution (operative propositions) but, rather, as instructions regarding how to decide whether the operative propositions are satisfied (decision rules). And it argues that recognizing the difference is likely to have broad consequences. For example, courts will better understand their own doctrines - better enabling them to sensibly revise and refine them - if they appreciate the respects in which a given doctrine communicates a decision rule rather than an operative proposition. Perhaps, say, operative propositions deserve greater stare decisis weight than do decision rules. Furthermore, this taxonomic distinction bears upon Congress's role in constitutional law-making. Although scholars frequently debate how much deference courts should accord Congress's constitutional interpretations, that is an infelicitous formulation of the issue. As Richard Fallon has recently taught, the truer, broader question concerns what role Congress should have in constitutional implementation. And judge-made constitutional decision rules may be congressionally defeasible where judicial operative propositions are not. Discrete payoffs from the operative proposition/decision rule distinction are valuable. But to focus narrowly on them risks missing the forest for the trees. Fundamentally, this Article offers an explicit (though partial) conceptualization of the logical structure of constitutional law - a conceptualization bearing a family resemblance to Monaghan's work on constitutional common law, Sager's exploration of underenforced constitutional norms, Strauss's defense of prophylactic rules, and Fallon's focus on constitutional implementation, yet reducible to none of them. This novel conceptualization makes better sense of much of contemporary constitutional scholarship and of many of the Supreme Court's most significant decisions. No doubt considerable distance toward a complete and precise taxonomy remains. But even incremental advances in detailing the conceptual map of constitutional adjudication can purchase large improvements in our ability to negotiate the terrain.

CONSERVATIVE jurisprudence is in the midst of an identity crisis. After having been relegated to the sidelines during the Warren and early Burger Court eras, conservative jurists have solidified their control of the federal courts. In exercising this newfound power, however, conservatives have faced significant challenges created by their dominance. They have learned the agonizing lesson that it is far easier to criticize from the outside than it is to rule. Doctrines and principles that can be purely espoused when one is out of power are harder to maintain after one takes the reins of control. Adhering to long-standing doctrines and principles is particularly troublesome when those tenets limit the authority of those in control. Doctrines and principles are far less attractive when they serve to limit one's own authority than when they limit the power of one's ideological opponents. This dilemma has been particularly problematic for conservatives because for many years the centerpiece of their jurisprudential agenda was the call for judicial restraint. Conservatives consistently condemned as judicial activism judicial decisions that overturned the actions of elected officials.' Greater deference to popularly enacted provisions, conservatives claimed, was necessary to the rule of law.2 Things have changed. The conservatives' internal conflict between exercising their judicial dominance and adhering to tenets