PETER L. STRAUSS [*] The executive branch is often called upon to assess how a particular statute it is charged to administer fits within the larger framework of the law. Professor Dawn Johnsen's thoughtful analysis addresses an important subset of these challenges: situations in which the President believes a particular statute is inconsistent with one or another provision of the and, therefore, should not be enforced. [1] My purpose here is to explore the context of executive non-enforcement more broadly, in a way that may help in understanding the particular problem she addresses. Issues of constitutional structure and function are among the most daunting we face. We want to live in a rule-of-law society. We have a that we know and intend to be supreme. Yet its instructions are vague and dated. It does not in terms create a separation of powers, establish judicial review, define our day-to-day government, or much indicate the President's relationship to that government. Indeed, as Professor Walter Dellinger remarked at the opening of this conference, central questions respecting the presidency were not even addressed until the pressured final eleven days of the Constitutional Convention. After more than two centuries, some of the Constitution's most fundamental questions remain unanswered. Perhaps, as I understand Professor Alexander Bickel once remarked in another context, that is on the whole a good thing. Some questions are better left as questions, with fringes of uncertainty, doubt, and play that provide flexibility and stability through changing times. It is perhaps best to begin these impressionistic responses to Professor Johnsen's ambitious paper by stating some premises central to my thinking about these problems, premises about which we might disagree. First, the Take Care Clause--which ending Section 3 of Article II of the Constitution, might not be thought the most important in the eyes of its drafters--does not in terms direct the President himself to faithful execution of the laws. Between saying that the President shall receive Ambassadors and other public ministers, and that he shall Commission all the officers of the United it says that he is to take Care that the be faithfully executed. [2] Thus, in ordinary English- appropriate in this sense to its placement late in the text of Article II--the Clause imagines that others do the actual executing and that the President be overseeing those persons, ensuring that their execution is faithful. While early Attorneys General disagreed about just how directory that oversig ht could be, they nonetheless recognized that Congress could specify oversight, not personal execution, as the presidential role. [3] Congress's statutory assignments of role--at least unless they are unconstitutional, and the Necessary and Proper Clause gives Congress broad discretion in making those assignments--are a part of the laws, the faithful execution of which the President is enjoined to assure. Second, appreciating the passive voice of the Take Care Clause permits us to see more clearly that the term it uses, laws is not a synonym for Laws necessarily includes the Constitution. The Clause is actually the second place at which Article II refers to faithful execution. In the presidential oath, specified earlier in the article, the President undertakes that he will faithfully execute the Office of President of the United States, and to the best of [his] ability protect and defend the of the United States. [4] Here, the diction is active, not passive, and its only reference to law is to the Constitution, not to statutes. It would be strange indeed if, having taken that oath, the President were precluded from considering what would preserve, protect and defend the Constitution in the course of seeing to it that others were faithful in their performance of duty. …

I INTRODUCTION It is a pleasure to comment on the fine institutional studies in this issue by Gillian Metzger and David Zaring. (1) Professor Metzger explores the many ways in which financial regulation, as reflected in the regulatory functions of the Federal Reserve (the Fed), differs from mainstream administrative law, as represented by the Environmental Protection Agency (EPA). She describes the historical roots of the divergence, explains how it has persisted over time, and offers some intriguing thoughts about the possibilities for convergence in the future. Professor Zaring paints a fascinating portrait of the Federal Open Market Committee (FOMC), the entity within the Fed that determines national monetary policy. Drawing upon transcripts of FOMC meetings during the Alan Greenspan era, he concludes that internal custom provides a more important constraint on the Committee's behavior than formal administrative law does. A common theme of both the Metzger and Zaring studies is that financial regulators differ from ordinary administrative agencies on the familiar dimensions of accountability and transparency. Both the Fed and the FOMC are highly independent, effectively immune from presidential oversight, and largely free to ignore Congress because they are funded out of their own operations. They operate under vague statutory mandates that confer enormous discretion. There is no public participation in the Fed's oversight of banks or the FOMC's setting of monetary policy. As Professor Zaring notes, judicial review is almost completely absent. (2) Moreover, most of the critical functions performed by the Fed and the FOMC are shrouded in secrecy. Meetings of the Fed and the FOMC are closed to the public, the results of bank examinations are confidential, the monetary policy directives of the FOMC are not disclosed until they are no longer in effect, and the transcripts of these meetings remain under wraps for five years. What is missing from both studies is the identification of a key attribute of financial regulation that helps explain these departures from traditional administrative law. Financial regulation concerns activity that has very low exit costs. What is being regulated is money, money substitutes (like money market funds and short-term repurchase agreements), and other financial assets, such as bonds, stocks, and derivatives. Financial regulation is concerned with the ultimate in slippery stuff; financial instruments are like quicksilver that can wiggle out of your grasp at a moment's notice. (3) This attribute exerts a pervasive influence on the nature of financial regulation, rendering it difficult in many circumstances to adopt ordinary norms of administrative law. There seems to be no prospect of this changing in the foreseeable future, and therefore it is unlikely that a complete convergence between financial regulation and other forms of administrative law will occur. II EXIT COSTS AND THE NATURE OF REGULATION Ordinary administrative law developed in the context of activities that either had no exit option or very high exit costs. Railroads are the pioneering example, as they were the subject of the first major federal regulatory statute--the Interstate Commerce Act. (4) Railroads have large fixed costs and are literally nailed to the ground. The only way to exit from the industry is to go bankrupt. Other public utilities, like electric and gas distribution companies, share similar features. Professor Metzger takes EPA rulemaking as the paradigm of modern administrative law, which reflects the thinking of most administrative law scholars. (5) EPA regulations, no less than rate regulations by the Interstate Commerce Commission and public-service commission orders, target facilities that have high fixed costs and little ability to relocate in the short run, such as coal-burning power plants and automobile assembly and distribution facilities. …

In the context of a special issue on ‘practices’ at the International Criminal Court, this article focuses on the practice of representation, and in particular on the practice of representing victims. As political and social theorists such as Pitkin and Bourdieu have argued with respect to politics, representation does not merely reflect reality, it is constitutive of it. In the ICC, two practices of victim representation have been prevalent. The first is the rather novel and widely welcomed practice of representing victims as participants in ICC proceedings. The second is the older practice of the discursive invocation of victims as the telos of international criminal law. But these two practices lead in different directions. Victim participation in court proceedings has led to the juridification of victimhood — the legal categorisation of victims — and as a result of this juridification, very few individuals are actually personally represented in the Court’s proceedings. The discursive invocation of victims as the telos of the Court’s work has created a deity-like and seemingly sovereign entity — ‘The Victims’ — that transcends all actual victims and corresponds to no individual victim in their particularity. The result of the two practices is an increasing gap between the limited role that victims play in international criminal proceedings due to the juridification of victimhood and the continued presentation of ‘The Victims’ as the raison d’être of international criminal law. The overdetermined presence of the figure of ‘The Victims’ as a rhetorical construct obscures the representative challenges faced by conflict-affected individuals in accessing the form of justice that is practiced in their (abstract) name.

In order to evaluate effect of regulation on technological innovation and diffusion in an industry, we need two benchmarks-a notion of how industry ought to behave and a notion of how it would behave in absence of regulation-so that we can judge extent to which regulation brings it closer to ideal or pushes it farther away. In much of regulation literature standard of ideal behavior is competitive market. Regulation is considered appropriate when unregulated industry departs from competitive ideal in important ways, which are labelled failures. More precisely, competitive standard requires that decisions be made so that benefits (measured by price) are equal to costs at margin. Regulation is then judged by whether it brings industry closer to standard than it could get by itself. In Brookings' review of Ash Council's proposals for improving regulation, for example, Noll states: the performance of regulatory agencies is judged herein by extent to which their actions correct for market failures that were motivation

I INTRODUCTION In 2004, the Illinois legislature passed the Gestational Surrogacy Act, which provides that a child conceived through in vitro fertilization (IVF) and born to a surrogate mother automatically becomes the legal child of the intended parents at birth if certain conditions are met. Under the Act, the woman who bears the child has no parental status.' The bill generated modest media attention, but little controversy; (2) it passed unanimously in both houses of the legislature and was signed into law by the governor. (3) This mundane story of the legislative process in action stands in sharp contrast to the political tale of surrogacy that unfolded in the 1980s and early 1990s as the Baby M case (4) left its mark on American law. It was through the lens of Baby M that this innovative use of reproductive technology was first scrutinized as an issue of social, political, and legal interest. (5) Over the course of the litigation between the intended parents, William and Elizabeth Stern, and the surrogate mother, Mary Beth Whitehead, hostility toward commercial surrogacy (6) arrangements hardened. Opponents of surrogacy--mostly feminists and religious groups--argued that the contracts were baby-selling arrangements that exploited poor women who either were coerced or did not understand the consequences of their decisions. Opponents argued that surrogacy degraded the female reproductive function and undermined the family. This framing of the transaction as illegitimate commodification was adopted by the New Jersey Supreme Court in Baby M and prevailed for several years thereafter, with far-reaching effects on legal regulation. By the early 1990s, many states had enacted laws prohibiting or severely restricting surrogacy agreements. (7) Some observers predicted the end of this particular use of reproductive technology. (8) But that did not happen. In fact, the politics and social meaning of surrogacy arrangements have slowly changed, and the alarm and hostility that surrounded this issue have diminished substantially. An alternative flame has emerged, in which altruistic surrogates (contractually bound and compensated nonetheless) provide the gift of life to deserving couples who otherwise would be unable to have children. News stories about surrogacy arrangements in the past decade have tended to be upbeat, human-interest tales describing warm relationships between surrogates and the couples for whom they bear children (9)--a far cry from the acrimonious battle between Ms. Whitehead and the Sterns over Baby M. The political and judicial response to surrogacy has also changed in recent years. In Illinois and other states, the contemporary legislative approach has been largely pragmatic, driven by a perception that parties will continue to enter these agreements and thus, that it is important to have procedures that establish parental status in intended parents. (10) In the absence of statutory authority, several courts, including the California Supreme Court, have also enforced gestational-surrogacy contracts and have held that the intended parents can be named on the birth certificate. (11) Although social conservatives continue to speak out against surrogacy in the political arena, (12) most contemporary groups interested in this issue advocate in favor of laws enforcing the arrangements. (13) This account raises a number of puzzling questions. How did it happen that surrogacy was framed as baby selling during the Baby M litigation? And why did the case generate such powerful emotional, ideological, and political responses that, institutionalized through legislation, continue to define the law in many states? Just as important--why did the politics and social meaning of surrogacy change, such that a more sanguine view of the practice seems to have emerged in recent years? Why did interest groups, particularly feminists, that played such a key role in advocating restrictive laws after Baby M, mobilize during the litigation and then over time seemingly lose interest in this issue? …

I INTRODUCTION The use of corporal punishment to discipline children remains one of the last holdouts of old-fashioned childrearing in the United States. Gone are the days of administering cod-liver oil to prevent rickets, spreading alcohol on babies' gums to dull teething pain, or even putting children to sleep on their stomachs to prevent choking on fluids--practices that have been repeated by generations of dutiful parents across centuries. The modern age of child-rearing experts has ushered in a new set of parenting techniques thought to promote optimal child development, including teaching children to use signs from American Sign Language to communicate before they are able to verbalize words, protecting children in fancy (and expensive) car seats that were unheard of even twenty years ago, and using time-out as a preferred means of discipline. Yet corporal punishment of children persists--roughly fifty percent of the parents of toddlers (1) and sixty-five to sixty-eight percent of the parents of preschoolers (2) in the United States use corporal punishment as a regular method of disciplining their children. By the time American children reach middle and high school, eighty-five percent have been physically punished by their parents. (3) These high prevalence rates are in stark contrast to the growing consensus within the social and medical sciences that the risks for substantial harm from corporal punishment outweigh any benefit of immediate child compliance. (4) Why, then, do parents continue to spank or hit their children in the name of discipline.? One reason is its long tradition--the corporal punishment of children has occurred throughout the entirety of recorded history. (5) For centuries in this country and in countries around the world, corporal punishment of children occurred in a context in which such punishment was also acceptable as a means of punishing adults for infractions, often in the form of public floggings. (6) But courts throughout the United States are no longer allowed to sentence criminals to corporal punishment, short of capital punishment. (7) In contrast, corporal punishment of children by parents remains legal and accepted; in most states parents continue to have a legal defense against assault if their intention in hitting their children was to discipline them. (8) As a result of this long history, corporal punishment has a strong intergenerational tradition in the United States. Parents, after all, learn most of their lessons about how to be a parent from their own parents. It is thus not surprising that adults' support for corporal punishment is significantly related to whether they believe their own parents were supportive of the practice (9) and whether they themselves were physically punished as children. (10) Indeed, children and adolescents who are spanked themselves tend to be more supportive of corporal punishment than children who have not been spanked. (11) Corporal punishment also persists because it is a practice with strong ties to religion, particularly to Christianity. (12) Religious leaders and religiously inspired parenting experts in our twenty-first century, (13) like their eighteenth-century compatriots, (14) make connections between firm discipline and a child's spiritual well-being, and encourage parents to use corporal punishment as an important part of their discipline repertoire. Parents with conservative Protestant affiliations in particular are more supportive of corporal punishment and use it more frequently than do parents of other Christian and non-Christian religious affiliations. (15) Although religious affiliation may explain why some parents continue to use corporal punishment as a means of discipline, a large and growing body of research has challenged the long-held assumption that spanking is a good, and perhaps even a necessary, way to make children better behaved. Despite popular parenting books that encourage parents to try nonphysical means of discipline, (16) practices such as spanking continue throughout the country. …

I INTRODUCTION Four years ago, as I was sitting at my desk in my overcrowded office, I received an odd e-mail. Dear Professor, it began, I am writing to introduce you to Round Table Group [RTG], and to notify you of a specific, short-term consulting opportunity which may be of interest. Our attorney client is seeking an historian, highly credentialed, and at a prestigious university, to perform some historical research and instruct a lay jury about what was known about a particular occupational hazard (lead paint contamination) between 1950 and 1980. (1) The letter went on to explain how the historian sought not be a subject matter but only need be a good communicator who could easily communicate a story to a lay jury. (2) The e-mail continued in some detail, telling me how the process would work: If I were interested, I could send in my resume, a brief explanation of my expertise, and a statement of my consulting fee. After consulting with their industry client, I would be set up on a conference call to determine if there is mutual interest in going forward. (3) The note continued by informing me about the consulting group: it was a consortium of several thousand professors in management, law, medicine, science, computer science, education, engineering, economics, and other disciplines who make themselves available ... to law firms and companies who are clients of Round Table Group. (4) Historians, it appeared, were a new addition to their stable of experts. What was ironic, if that's the right word, was that RTG was searching for an expert to testify on behalf of companies in a lead-paint trial, and at that very moment I was preparing to testify in a major lead-paint trial on behalf of the State of Rhode Island. (5) I, with Gerald Markowitz, had written a book on the lead and vinyl industries (6) based on documents we had uncovered. The documents, an affidavit we had written, and the book had all become part of a landmark case in which Rhode Island's Attorney General, along with the support of the plaintiffs' law firm, Motley Rice, were suing the lead-pigment manufacturers to get them to remove lead paint from hundreds of thousands of buildings in the state. It appeared that the lead industry was searching for someone to testify against me. Clearly, this recruitment letter was part of a larger phenomenon. In recent years historians have been brought into legal cases in unprecedented numbers. (7) As the courts have tried to adjudicate responsibility for environmental and occupational diseases, history has played an increasingly central role in decisions that affect the cases themselves and in social policy regarding risk. In suits over tobacco-related diseases, asbestosis, radiation, and other toxic substances, more historians of technology and science, social history, and public health are being sought to provide testimony aimed at assessing responsibility for damages that have arisen years--sometimes decades--after exposure. The basic questions asked were predictable: Who knew what about specific toxins and when did they know it? Did industries understand that specific substances could cause disease? If so, when did they learn of the dangers and when did they begin to warn their workers or their consumers of their products that they were at risk? As the role of the historian has expanded, so too has the controversy surrounding historians' participation. At the annual meeting of the American Association for the History of Medicine, traditionally a collegial conclave of subspecialists, a panel on the history of childhood diseases ended up in a shouting match after a respected historian who had been a consultant for the tobacco, asbestos, soft-drink, and lead industries, presented a paper arguing that the lead industry had done nothing wrong before the 1950s, and that, in any case, the problem of childhood lead poisoning was vastly overblown. …

I INTRODUCTION Nonaccidental physical injuries children suffer at the hands of their parents occur along a continuum that ranges from mild to severe. At the outer edges of this continuum, one might find, on the one hand, a slight swat to the buttocks, and on the other, a brutal beating. In the United States, the normative consensus appears to be that outsiders to the are appropriately concerned only when the physical injury at issue causes serious harm; any injury short of a serious one is exclusively family business. Consistent with this consensus, all states' laws permit the use of corporal punishment; (1) simultaneously, they all prohibit nonaccidentally inflicted serious injury. The latter is generally denominated abuse, although some states classify milder but still impermissible injuries as neglect, or simply inappropriate discipline. Thus, being able to distinguish between corporal and maltreatment--whether this is formally denominated abuse or neglect--is critical for the relevant actors: parents who use corporal as a disciplinary tool, child protective services (CPS) staff who are required by statute to intervene in the to protect children subject to or at risk of abuse, and courts adjudicating issues arising in connection with these cases. The integrity of the distinction and of the methodology employed to make it is also critical for a society that is prominently committed to both autonomy and child welfare, and in particular to protecting the integrity of the when it promotes (or at least does not harm) child welfare, and to intervening in the when it fails in its related obligations. Unfortunately, few if any states have sufficiently defined the relevant terms reasonable corporal punishment or maltreatment (abuse or neglect) to consistently guide the relevant actors (those in a single system) in their exercises of discretion; nor have they established a coherent methodology for sorting injuries along the continuum of nonaccidental physical injuries. That administrative regulations and policies promulgated by state and local CPS departments often narrow agency discretion helps CPS itself to be more consistent and may help families know what to expect when they are dealing with CPS. But because appellate courts do not appear to give much deference to agency interpretations of the statutory definitions, these regulations and policies do little to guide the courts' own exercise of discretion. Moreover, to the extent that the law in statutes and judicial opinions is either less precise or even different from the law as it is applied by CPS, the public and parents are inevitably confused or misled. As a result, decisionmaking about whether an injury or incident remains in the realm of business or has crossed the line into the impermissible varies, reflecting a multiplicity of purely personal viewpoints, religious and political ideologies, and academic or disciplinary training and requirements. In turn, institutional treatment of and outcomes for children and families are often inconsistent. (2) The status quo has been defended or at least explained on several grounds. The vagueness of abuse definitions has been consistently upheld on policy grounds--specifically on the argument that it is important for authorities to retain flexibility to call injuries as they see them given that, particularly in a diverse society, abuse might appear in unexpected forms. (3) The difficulty of the definitional project has also been acknowledged. This difficulty stems both from the relatively mundane problem of how textually to craft the definitions so that they capture all and only what we want them to capture, and from the related (but infinitely more complex) problem of how to resolve the ideological tensions at play in this area. Each of these explanations has merit. First, we do not want to be left with definitions so fine that they disallow necessary protective interventions based in different (nonnormative) or unprecedented and harmful parenting practices. …

Abstract This chapter discusses the methodologies and results of behavioral genetics studies, focusing on traits such as antisocial behavior, aggression, and behaviors associated with criminal conduct. It describes in detail the classic methods as well as more recent research designs of behavioral genetics studies, along with the various assumptions, strengths, and weaknesses of each approach. It surveys leading scientific research in antisocial personality disorder and explains the known biological and environmental contributions.

I INTRODUCTION Over the past four decades of teaching and studying First Amendment law, I have witnessed the resolution, or at least the clarification, of many free and press issues. There are, however, persistent issues--those elusive or intractable tensions between free expression and other basic human liberties--that deserve particularly close scrutiny. Three such issues occasion this article: tensions between free expression and privacy, civility, and equality. Examples of each tension abound: Can an aggressive reporter or photographer be barred from using high-tech tools such as infrared cameras and parabolic microphones to gather images and conversations through the walls of a house or office? Can a person be jailed for cursing and using vulgar four-letter words in public? Can hate speech be curbed on a college campus to protect vulnerable groups in society? It should be simple to answer such questions, but instead is exceedingly difficult because of a deep national ambivalence toward the proper balance betwe en free expression and other values. As a nation, we are equally committed to freedom of and to those basic values of privacy, civility and equality. We expect the courts to strike the proper balance, to resolve these tensions in ways that will permit us to preserve (and our laws to serve) both sets of values equally well. When the courts fail or falter in this effort, we are deeply disappointed. We expect judges to discover or devise paths of reconciliation, even though they have eluded the rest of us. In the three areas of tension on which this article focuses, the courts have been notably unsuccessful and a breakthrough appears unlikely. Perhaps we should simply acknowledge that resolution of these issues is not possible and that we must accept certain intractable tensions within our First Amendment jurisprudence. Maybe, indeed, we should even be grateful that so few truly irreconcilable conflicts exist. II PRIVACY: WILL THE TRUTH SET YOU FREE? In an ideal system, the legal import of truth would be unmistakably clear. Factual correctness would either provide a complete defense to any claim for invasion of privacy or be legally irrelevant. The courts of this country have, however, been curiously ambivalent about the relationship between privacy and truth. Even individual Supreme Court Justices may fairly be accused of vacillation. One might easily forget that Justice Louis D. Brandeis, who late in his career framed the case for maximum freedom of expression most eloquently, (1) had as a young lawyer written the seminal article first advancing the rationale for imposing legal liability on those whose publication of unwelcome truth invaded the privacy of others. (2) Such inconsistency has persisted in ways that underscore the inherent difficulty of the issue. The Supreme Court has consistently declined to recognize truth as an absolute defense when reviewing criminal or civil judgments against those who have published truthful but private information, although the Justices have never sustained such a claim when the accuracy of the material was undisputed. What the Court has said on this issue is helpful but not dispositive: [S]tate action to punish the publication of truthful information seldom can justify constitutional standards. (3) The crucial word, of course, is seldom; Chief Justice Burger chose not to say never. Such a formula poses this intriguing question: Why has the high Court never flatly foreclosed such claims against publishers of truthful information? Instead of setting that standard, the Court has imposed three conditions: (1) The information must be accurate; (2) it must have obvious public interest; and (3) it must not have been unlawfully obta ined. (4) The first criterion is obvious enough; spreading false information would not only subject the publisher to civil liability for defamation, but also would elicit little sympathy even from a court generally committed to protecting free expression and communication. …