But they’re wrong. This Article provides a comprehensive response to the dormant Commerce Clause Skeptics from an historical and originalist perspective. Far from lacking legitimacy, the Clause has deep roots in Founding history. It addresses one of the central problems that drew the Framers to the Philadelphia Convention, and it employs the very device for reviewing state legislation the Framers preferred, judicial review. From a historical perspective, the Court’s modern dormant Commerce Clause doctrine is actually far more respectful of state authority than the understanding of the Clause likely held at the time of the Framing. But looking with presentist eyes, the Skeptics miss this entirely. The story of the dormant Commerce Clause is one of many twists and turns, nearly inscrutable doctrine, and political manipulations. But no matter what other problems the doctrine may suffer, its fundamental legitimacy is not among them.

This significant change in Sixth Amendment law raises many new questions regarding the scope and procedure of a waiver of the Sixth Amendment right to counsel. In addressing these questions, this Article first critiques the Montejo decision for its conflation of the Sixth Amendment right to counsel with the Fifth Amendment right to counsel. This Article posits that the Court wrongly grafted Fifth Amendment notions of voluntariness and coercion onto its Sixth Amendment analysis, thereby ignoring traditional Sixth Amendment concerns, such as fairness in the adversarial process and the provision of counsel as an intermediary between the defendant and the State. This Article then considers several questions that arise in the wake of Montejo, including: whether a formal waiver is still needed to waive the Sixth Amendment right to counsel; if it is, what language constitutes a valid waiver; and what police conduct will invalidate a waiver? In answering each of these questions, this Article discusses the inherent limitations of the Montejo Court’s conclusion that the protections afforded by the Fifth Amendment right to counsel, namely those of Miranda and its progeny, offer sufficient protection of a defendant’s Sixth Amendment right to counsel. Finally, this Article argues that these Fifth Amendment-based protections are, in fact, insufficient, and courts should answer these post-Montejo questions by reaffirming the distinct fundamental principles that underlie the Court’s traditional Sixth Amendment right to counsel jurisprudence.

The principle of misalignment reorients the interpretation of tort law in a manner that has been missed by leading accounts. It decisively shows that courts have formulated the negligence rule in a fundamentally inefficient manner, while also showing that the rights-based accounts of corrective justice must explain why that form of justice would primarily value the exercise of reasonable care as opposed to the payment of compensatory damages. For reasons revealed by the misaligned negligence rule, that type of explanation can be supplied by a compensatory tort norm that redirects the dutyholder’s compensatory obligation from the damages remedy into expenditures that would prevent physical harm, yielding the type of misaligned negligence rule that now constitutes the default rule of tort liability. In a world of irreparable injuries and scarce resources, the varied limitations of tort liability can all be understood in relation to a norm of compensation for reasons fully illustrated by the misaligned negligence rule.

The limitation of punitive damages to the amount required to vindicate the plaintiff’s tort right, however, does not prevent these awards from furthering the social interest in general deterrence. In a mass market, the rights-violation suffered by the plaintiff/consumer (e.g., physical harm caused by the defectively designed product) is no different from the violations faced by a large number of similarly situated rightholders (other consumers in the market exposed to the defective product). Due to the interdependence of rights-violations in mass markets, a punitive award that fully vindicates the plaintiff’s tort right will necessarily account for the manner in which the defendant failed to adequately account for the interests of similarly situated rightholders. Punitive damages can further the social interest in general deterrence, even though the fundamental requirement of due process limits a defendant’s tort liability to the amount of damages that vindicate the plaintiff’s individual tort right.

Put simply, the Roberts Court’s decisions seem to follow a traditional script of dual federalism – that is, carving out separate spheres for state and federal governments and enforcing norms of mutual non-interference between these spheres. The paper concludes with speculation about whether there might be any normative justification for this pattern. One might argue that preemption is less costly when the state and federal rules in question define the framework for bargaining as opposed to the assignment of entitlements. By contrast, preemption of state laws defining entitlements to health, safety, bodily integrity, and property more generally tend to raise culturally and politically divisive issues that are best handled subnationally in a federal regime.

This Article conducts the first comparison of proposals that the IAT be used to address jury bias. They fall into two groups. The first group would use the IAT to “screen” potential jurors for implicit bias; the second group would use the IAT to educate jurors about implicit bias. These proposals merit deeper consideration. Implicit bias is pervasive, and affects crucial juror functions: evaluation of evidence, recall of facts, and judgments of guilt. Juries are generally told nothing about implicit bias. The judiciary has expressed concern about implicit juror bias, and sought help from the academy in addressing the problem.

I provide what the proposals lack: critique and context. I show that using the IAT to screen jurors is misguided. The educational project has merit, however, since implicit bias can be countered through knowledge of its existence and motivation to address it. To refine the project, I identify two vital issues that distinguish the proposals: when jurors should learn about implicit bias, and how they should learn.

On the issue of when, I argue that the education should begin while the jurors are still being oriented. Orientation is not only universal, but, as research into “priming” and “framing” has shown, a crucial period for the forming of first impressions. On the issue of how, I argue that those proposals that would include the jurors taking an IAT are superior to those that would simply instruct jurors on what the IAT shows. In an area fraught with denial, mere instruction would likely be dismissed as irrelevant. I use pedagogical theory to show that experiential learning about bias is more likely to be effective.

I bring when and how together, proposing a model that would include the use of the IAT as an experiential learning tool during orientation. It would harness the civic energy of jurors to an educational purpose, rather than letting it morph into boredom; by putting jurors in an active mindset, it would enhance their satisfaction with the process, and their ability to perform optimally. As for potential jurors who are never selected, their participation would honor the long-standing educational function of jury service.

These comments were originally presented at the 2011 Pacific Division of the American Philosophical Association upon the occasion of Yaffe’s paper being awarded the Berger Prize for being the “best article or chapter in the field of legal philosophy in the past two years.” These comments (along with comments by Mark Greenberg and a response by Gideon Yaffe) will be published in the APA Newsletter on Philosophy and Law.

The focus of this paper is on Common Article 3 of the Geneva Conventions of 1949 - the strongest, least debatable basis for applying certain IHL principles to those who kill noncombatants during internal armed conflict. It seeks to demonstrate that Common Article 3 binds both the state and those seeking its violent overthrow. The binding force of Common Article 3 flows both from the positive premise that states can legislate on behalf of all those within its territory, even its armed opponents, and from the fact that Common Article 3 reflects customary international law.

This paper is a call for moral and legal clarity. Politically-inspired murder of civilians during armed conflict is murder, pure and simple, and should be regarded as such by the world. Such acts, whether they occur in interstate or wholly internal armed conflicts, violate not only the domestic law of the victim’s state and of the state where the acts occur, but also violate well-established treaty and customary law. Murder of civilians is not a legitimate part of armed struggle, and cannot be justified by pleas of needing to right wrongs suffered at the hands of other states, or equalizing the balance of forces between the weak and the strong. The murderer of civilians, like the pirate, slave trader or torturer, merits the condemnation of all mankind, of all organized society.

This Paper will appear in a forthcoming collection entitled Balancing Wealth and Health: Global Administrative Law and the Battle over Intellectual Property and Access to Medicines in Latin America (Rochelle Dreyfuss and César Rodríguez Garavito, eds.). It analyzes the parameters and pitfalls of a rights-based approach to access to medicines, focusing on the work of international human rights bodies, mechanisms, and procedures on the question of balancing intellectual property and human rights. Part I outlines both the broad and specific parameters of the rights-based approach to intellectual property and access to medicine, while Part II addresses the impediments and obstacles to implementing such an approach in practice. These obstacles arise in connection to key inter-related deficits in international human rights law around the issues of legitimacy, accountability, and domestic capacity. The Paper concludes that the full and equitable realization of the right to adequate health depends greatly on the capacity and political inclination of domestic actors to enforce international norms.