For many decades, the United States has been conducting an extraordinary natural experiment: Randomly assigned three-judge panels on courts of appeals produce extensive evidence of the effect of judicial ideology on judges' votes.If the political party of the appointing president is treated as a rough proxy for ideology, then it becomes possible to test three hypotheses: (a) a judge's votes, in ideologically contested areas, can be predicted by the party of the appointing president; (b) a judge's ideological tendency, in such areas, will be amplified if the panel has two other judges appointed by an appointing president of the same political party; and (c) a judge's ideological tendency, in such areas, will be dampened if the panel has no other judge appointed by an appointing president of the same political party.All three hypotheses are confirmed in many areas, including affirmative action, campaign finance, sex discrimination, sexual harassment, piercing the corporate veil, disability discrimination, race discrimination, and review of environmental regulations.An important implication is that panel composition has a strong effect on likely outcomes, thus creating extremely serious problems for the rule of law.Taken as a whole, the evidence suggests that judges frequently issue collegial concurrences, that is, concurrences produced by the unanimous views of the other judges on the panel, and that judges are subject to group polarization, by which groups of like-minded people go to extremes.Notably, all three hypotheses are rejected in the areas of federalism, criminal appeals, and takings of private property, because Republican and Democratic appointees vote essentially alike.In the areas of abortion and capital punishment, the first hypothesis is confirmed, but the second and third are rejected, because judges vote their convictions, and are not affected by the composition of the panel.Disaggregating the data by circuit allows courts of appeals to be ranked along an ideological spectrum; it also shows striking differences between Republican appointees and Democratic appointees on different circuits.Normative implications are briefly explored.

This Essay demonstrates the strategic advantage of narrow patents and unprotected publication of RD that between the two main theoretic strands in patent law scholarship--the property rights perspective and the information revelation perspective. It also explains the recent trend toward unprotected publication of information. Finally, we propose an important reform of the novelty requirement in patent law that would further encourage narrow patents and unprotected publication by bolstering the credibly of a patentees commitment not to patent previously published research findings.

Three recent phenomena - the corporate governance scandals, continuing concern about corporate tax shelters, and the Bush Administration's proposal to exempt dividends from income - have generated renewed interest in the amount of taxes paid by public corporations on the profits they report to their investors. This paper estimates the effective tax rates (ETRs) from 1995 to 2000 of the corporations included in the S&P 500 based on a comparison of their worldwide current income tax expense to their worldwide pre-tax book income. It finds that after controlling for the disparate tax and accounting treatment of stock options, the ETR of the sampled corporations declined slightly, from 30.11% in 1995 to 27.98% in 2000. Potentially more revealing is the fact that there is an important reduction in the 1999 ETR relative to the 1995-98 period (during which the ETR was virtually unchanged), and the 2000 ETR remains below the 1995-98 average. The paper is unable to relate these remaining changes in ETR to trends in foreign investment of the companies involved.The paper also estimates that the six-year ETRs (after stock option conformity) of ten industry groups varied from a low for the energy sector (25.72%) and industrials (25.84%) to a high for the information technology sector (32.48%) and utilities (32.43%). Both the level of taxation (compared to the statutory tax rate of 35 percent) and relative uniformity of tax treatment of the industries is to be contrasted with the much greater variations experienced by industries during the early 1980's.

Although philosophers of law display an impressive diversity of opinion, they usually agree about one thing: Their discipline is closely connected to the philosophy of language. The extent of agreement on this point can be seen in the recent flood of books and articles exploring the connections between the two fields. In this Essay, I will argue that much of this literature is based upon a mistake. The philosophy of language generally has no jurisprudential consequences. The fact that so many philosophers of law have thought otherwise has seriously hampered progress in the field, and not just because time, effort, and paper have been wasted. Theories about the law have been accepted or rejected for the wrong reasons - on the basis of arguments about language that fail to support or undermine these theories at all. The philosophy of language appears to have jurisprudential consequences because of a mistake, which I will call Dworkin's fallacy in honor of the most famous philosopher of law to have succumbed to it. This Essay will analyze the fallacy and describe its negative effects. In Part I, I will describe an example of a debate in the philosophy of language that has wrongly been thought to have jurisprudential consequences. This debate concerns realism about reference. Can words refer in ways that transcend our current beliefs? For example, can the word law refer to something that people do not currently believe is law? In Part II, I will provide two examples of philosophers of law - Ronald Dworkin and Michael Moore - who misderive jurisprudential conclusions from this debate. In Part III, I will describe a second example of a debate in the philosophy of language that has wrongly been thought to have jurisprudential consequences. This debate, which is inspired by Ludwig Wittgenstein's remarkable discussion of rule-following, concerns the fundamental question: How is it that we can intend to use a word in one way rather than another? How can we make law mean law instead of, say, Nilla Wafers? In Part IV, I will provide two examples of philosophers of law - Dennis Patterson and Margaret Radin - who misderive jurisprudential conclusions from this second debate. Although Dworkin, Moore, Patterson, and Radin agree about little in the philosophies of language and law, Dworkin's fallacy causes each to see a relationship between the two disciplines. Given the pervasiveness of the fallacy, we should be skeptical whenever a philosopher of law relies on the philosophy of language. Chances are, she is discussing issues that are irrelevant to her true concerns. I will end the Essay with a brief discussion of three situations to which Dworkin's fallacy does not apply and in which the philosophy of language has genuine, if limited, relevance for the philosophy of law.

President Bush's military commission order, based upon FDR's guidance for the 1942 trial of Nazi saboteurs, authorized procedures departing substantially from court-martial practice. This paper demonstrates the military commission, whose actual origin is traced to the Mexican War in 1847, differed from the statutory court-martial primarily in jurisdiction, not procedure. It argues that Article 36 of the Uniform Code of Military Justice should be read, particularly in light of developments in contemporary international law and the Charming Betsy canon, to require continued commonality between the two tribunals. This argument was substantially adopted by the district court in Hamdan v. Rumsfeld, 344 F. Supp. 2d 152, 166 n12, 169 n15, 170 n16 (D.D.C. 2004).

Although Marbury v. Madison is viewed as foundational to the American enterprise, there have been widely differing views as to what foundational principle Marbury embodies. Some commentators have identified Marbury with the veto principle, under which anyone disappointed by a law promulgated by the executive of legislature is entitled to a judicial determination of the constitutionality of that law. Others have suggested that the current Supreme Court believes that Marbury and its progeny mean that in most cases, there is no room even for interpretation by other branches of government: legislative and executive acts have no status until the judiciary passes on them. Still others treat Marbury as standing for the far more limited proposition that judicial only permits courts to engage in interpretation within a limited sphere of cases and controversies in which they are authorized to do so, and outside that sphere there is a vast realm where issues are delegated to the political branches. This article sketches successive understandings of Marbury since it was handed down, and attempts to show how those understandings have been affected by changing views of the relationship of the judiciary to other branch actors in the American order. It argues that successive understandings of Marbury have not pivoted on the legitimacy of as that term has been conventionally understood. They have pivoted, instead, on the scope of judicial supremacy: on the extent to which the Court has tacitly allowed other branches to carve out some space for their own interpretations. My interpretation of the constitutional journey of Marbury requires review, in American jurisprudence, to be seen as a composite of two foundational principles. One is the principle that in cases or controversies involving interpretations of the Constitution of the United States, the judiciary is the ultimate expositor. That principle amounts to judicial supremacy, and was understood as such by early commentators on Marbury. The other is the principle that the range of cases and controversies requiring judicial interpretation of the Constitution is comparatively narrow, and outside that range there is a wide scope for activity by other branch actors that amounts to interpretation. This principle, which I call departmental discretion, assumes that although the judiciary has the power to implicit judgments by other actors, that power includes the freedom to decline to do so. Although my interpretation might seem intuitively obvious to persons familiar with American jurisprudence, it does not seem easily reconcilable with current commentary that suggests that review has always, and should be, grounded in popular constitutionalism. I explore that conflict in concluding portions of the article.