In this Article, Professor Greene examines the evolution of one system of enforcement policy guidelines-the U.S. federal antitrust merger guidelines-and finds that these guidelines have acted as a stealth force on the development of antitrust merger law. The influence of this guideline system, she hypothesizes, emerges from a process of institutionalization through which the guidelines become valued for more than the persuasive power of their ideas. This institutionalization process arguably has had an undue influence upon common law development, as courts have failed to fully engage the legal and economic substance of the guidelines. These findings raise the more general concern that the courts have frequently ceded their role as checks on administrative agency power operating through nonbinding policy statements such as enforcement guidelines. Such questions regarding the judiciary's role in the separation of powers are broadly analogous to those raised by Theodore Lowi regarding Congress's role in the legislative process.

Professor Greene chronicles the history of the guidelines through a series of case studies involving key elements in merger analysis. Then, based on a review of all rulings from 1969 to 2003 concerning section 7 of the Clayton Act, she generates basic quantitative measures regarding judicial references to the guidelines and then qualitatively assesses the extent to which judicial reference to the guidelines reflects substantive reliance on them. Both the case studies and statistical data provide strong evidence supporting the institutionalization theory. Having raised normative questions regarding guideline institutionalization, she then evaluates several strategies to counter that influence and proposes conduct-oriented recommendations.

Though specifics may vary, the unacknowledged phenomenon of guideline institutionalization is not unique to antitrust law. As such, Professor Greene concludes this Article with an examination of guideline institutionalization in other contexts, including the FCC and FERC, state consumer protection, and federal sentencing.

The same price revelation dynamics cause Truth-in-Lending Act disclosures to break down for subprime loans. TILA allows subprime lenders to advertise their best rates alone, misleading customers with weaker credit. In addition, TILA does not require lenders to reveal binding prices until closing (except for high-cost refinance home mortgages). Finally, TILA disclosures for traditional adjustable-rate mortgages, interest-only mortgages, and option ARMs are hopelessly complex. The article concludes by proposing reforms to federal disclosure laws to permit meaningful comparison-shopping and promote price competition in the subprime mortgage market.

When investors buy securities backed by predatory loans, they face a classic lemons problem in the form of credit risk, prepayment risk, and litigation risk. Securitization exacerbates all three risks by unbundling the mortgage process, giving rise to adverse selection. In theory, the lemons problem should cause investors to flee the market for subprime mortgage-backed securities or demand a risk premium commensurate with the worst quality loans. Instead, securitization allays adverse selection concerns by structuring transactions so that risk-averse investors receive their agreed-upon return without needing to screen out predatory loans. In addition to pricing, the secondary market uses structured finance and deal terms, instead of filtering, to manage credit, prepayment, and litigation risk. Furthermore, structured finance provides incentives to securitize predatory loans. Voluntary due diligence could help ameliorate the problem, but those efforts remain sparse. To alter this perverse incentive structure, we propose legislation to impose a duty on secondary market assignees of subprime home loans to investigate and police predatory lenders.

The Article proceeds in three parts. First, I summarize the literature on legal pluralism and suggest ways in which this literature helps us understand the global legal environment. Second, drawing on pluralist insights, I offer an analytical framework for addressing normative conflicts, one that provides an alternative both to territorially-based sovereigntism and to universalism, and instead opens space for the recognition and accommodation of multiple normative commitments. This framework generates a series of values and principles that can be used to evaluate the efficacy of procedural mechanisms, institutional designs, and discursive practices for managing hybridity. Third, I survey a series of such mechanisms, institutions, and practices already in use in a wide variety of doctrinal contexts, and I discuss how they work (or sometimes fail to work) in actual practice. And though all of these mechanisms, institutions, and practices have been discussed individually in the scholarly literature, they have not generally been considered together through a pluralist lens, nor have they been evaluated based on their ability to manage and preserve hybridity. Thus, my analysis offers a significantly different approach, one that injects a distinct set of concerns into debates about global legal interactions. Indeed, although many of these mechanisms, institutions, and practices are often viewed as "second-best" accommodations between hardline sovereigntist and universalist positions, I argue that they might at least sometimes be preferable to either. In the conclusion, I suggest implications of this approach for more general thinking about the potential role of law in identifying and negotiating social and cultural difference.

This Article provides one of the few in-depth reviews of special districts in the academic literature, focusing on the Texas municipal utility district (MUD), originally designed to supply water to unincorporated areas. MUDs—the most common type of special district in the state with the third largest number of special districts—embody both the strengths and weaknesses of special districts. Texas's failure to address MUDs' negative effects reflects our nationwide failure to analyze and correct problematic special districts. This Article discusses MUDs' formation, powers, and scope, and analyzes how MUDs operate without real democratic checks, have too much power, and ineffectively work toward their goals. Throughout, it attempts to engage the central question in modern local government law: the optimality of certain units of government.

Now, in the first decade of the 21st century, the gaze has widened still further, as international law scholars (and those studying law and globalization more generally) increasingly recognize that we inhabit a world of multiple normative communities, some of which impose their norms through officially sanctioned coercive force and formal legal processes, but many of which do not. These norms have varying degrees of impact, of course, but it has become clear that ignoring such normative assertions altogether as somehow not “law” is not a useful strategy. Accordingly, what we see emerging is an approach to international law drawn from legal pluralism.

As such, this new international law scholarship owes a debt not only to Myers McDougal, Harold Lasswell, Michael Reisman and the other practitioners of the New Haven School, but to another Yale Law School professor whose name is rarely associated with international law: Robert Cover. This Essay discusses Cover's work and its relationship to the New Haven School of International Law, while arguing that Cover's emphasis on norm-generating communities—rather than nation-states—along with his celebration of “jurisdictional redundancy” provide a useful analytical framework for understanding the plural normative centers that are the focus of much current international law scholarship. Moreover, a pluralist perspective on international law provides a powerful critique to the latest incarnation of realism, now newly dressed up in the trappings of rational choice theory.

In this Essay I suggest that the domestic U.S. administrative law literature may provide a useful set of responses to privatization that has been largely overlooked by international law scholars, policy-makers, and activists. In particular, I argue that possibilities for extending public law values inhere in the privatized relationship itself, particularly in the government contracts that are the very engine of privatization. Thus, the contracts governments enter into with non-state actors can include many provisions that would help to create both standards of behavior, performance benchmarks, and a means of providing some measure of public accountability. In this Essay, I outline nine such contractual provisions. Specifically, I suggest that contracts be drafted to: (1) explicitly extend relevant norms of public international law to private contractors, (2) specify training requirements, (3) provide for enhanced monitoring both within the government and by independent third-party monitors, (4) require accreditation, (5) establish clear performance benchmarks, (6) mandate self-evaluation by the contractors, (7) provide for governmental takeovers of failing contracts, (8) include opportunities for public participation in the contract negotiation process, and (9) enhance whistleblower protections and rights of third-party beneficiaries to enforce contractual terms. And while these provisions are not a panacea, they may be at least as effective as the relatively weak enforcement regime of public international law. At the same time, by considering the field of international privatization, I seek to open what I believe could be a fruitful dialogue between domestic administrative law scholars and international law scholars about possible responses.

Under Bowers v. Hardwick, sodomy as a "victimless crime" nevertheless wrought its injury on the polity; the majority in that case effected an erosion of the boundaries separating private and public, individual bodies and the social body. Lawrence v. Texas has reinscribed these boundaries in the name of choice and personal autonomy. Cases addressing sadomasochistic sexual practices, however, reason in the reverse direction: identifying a public injury in violence unchecked and then locating it on the body of the masochist, regardless of the nature of his participation. With his apparent passivity or even active receptivity in the face of violence, the masochist putatively lacks the kind of rationality that would render him capable and deserving of autonomy and respect.

Theorists of consent, however, demonstrate that consent frequently mystifies the relationship between active and passive. The essay considers Elaine Scarry's work on consent before contemplating the doctrine that deems consent to sadomasochism legally unintelligible. Courts and commentators alike seem nonplussed by a practice that apparently merges sex and violence, pain and pleasure. Their anxiety about sadistic aggression unchecked inspires them largely to neglect the masochist's complex role.

Moreover, while courts and others have denounced these practices - and implicitly the ways in which they play out fundamental legal and political narratives of consent and subjection - as outside the bounds of cognizable human behavior, many theorists of S/M have celebrated its reflective function, seeing it as an expose of power relations. Proponents and detractors alike of sadomasochism generally disregard the gender of the participants, although gender has clearly shaped the legal doctrine. The male masochists involved in the major cases have rendered recognition of consent in that context even more fraught. The essay notes certain ideals of masculinity at work in the construction of the ideal legal subject, ideals to which male masochism poses a radical challenge.

Finally, the essay draws an analogy between the suspicion of sadomasochistic consent and that of consent to psychoanalytic treatment. In both of these contexts, what begins as a quintessentially volitional act, indeed one that often takes the form of a contract, appears to get subsumed immediately into compulsion. The essay concludes by suggesting that consent in these contexts highlights the extent to which categories of compulsion and volition, emphatically distinguished in our culture, come to haunt one another.

Thus, while both the critics and the Court have used the history of forfeiture actions to support their conclusions, neither side has made any serious attempt to understand this history. This Article closely examines the widespread historical practice of conducting legal actions against both inanimate objects and animals. It is unsatisfying simply to conclude that these trials were the product of irrationality or superstitiousness. Instead, this Article speculates on whether these trials may have performed important social functions for the community. In particular, the trials may have permitted the community to heal itself after the breach of a social norm by creating a narrative whereby a symbolic transgressor of the established order was deemed to be "guilty" of a "crime" and cast beyond the boundaries of the society. This Article then suggests that at least some aspects of modern civil forfeiture law may fulfill a similar function. Still today, a forfeiture proceeding can serve to remove an offensive symbol of wrongdoing from the community, a function that is quite distinct from the desire to punish the culpable individual who may have used the object. Indeed, the importance of this symbolic aspect of civil forfeiture may provide a way of thinking about the Supreme Court's recent jurisprudence in this area.

Against the backdrop of these developments, our continued embrace of the conventional subject-matter division reflects and reinforces an increasingly false opposition between legal strategies that rely on workplace organizing and collective action (on the one hand) and those that rely on litigation and related institutional practices (on the other). More fundamentally, the conventional division reflects and reinforces an increasingly false opposition between the struggle for workplace democracy and the struggle for racial, gender, and other forms of justice in the workplace and beyond.

This paper discusses these three communities against the background of several other treatments of community in the work of Josiah Royce.