Remarks by Acting Solicitor General Neal Katyal

Few have served the public with greater distinction than Justice John Paul Stevens. That service began with Justice Stevens\u27s work as a naval intelligence officer during World War II, continued through his five years of service as a judge on the Seventh Circuit, and culminated with thirty-four and a half years on the United States Supreme Court. It also included a twenty-six-day stint in September 2005, during which Justice Stevens served as the Acting Chief Justice of the United States

Conspiracy Theory

Over one-quarter of all federal criminal prosecutions and a large number of state cases involve prosecutions for conspiracy. Yet, the major scholarly articles and the bulk of prominent jurists have roundly condemned the doctrine. This Article offers a functional justification for the legal prohibition against conspiracy, centering on psychological and economic accounts. Advances in psychology over the past thirty years have demonstrated that groups cultivate a special social identity. This identity often encourages risky behavior, leads individuals to behave against their self-interest, solidifies loyalty, and facilitates harm against non-members. So, too, economists have developed sophisticated explanations for why firms promote efficiency, leading to new theories in corporate law. These insights can be reverse-engineered to make conspiracies operate less efficiently. In reverse-engineering corporate-law principles and introducing lessons from psychology, a rich account of how government should approach conspiracy begins to unfold. In particular, law enforcement strives to prevent conspiracies from forming by imposing high up-front penalties for joiners but uses mechanisms to harvest information from those who have joined and decide to cooperate with the government. Traditional conspiracy doctrines such as Pinkerton liability and the exclusion from merger not only further cooperation agreements, they also make conspiracies more difficult to create and maintain by forcing them to adopt bundles of inefficient practices. The possibility of defection forces the syndicate to use expensive monitoring of its employees for evidence of possible collusion with the government. Mechanisms for defection also break down trust within the group and prime members to think that others are acting out of self-interest. The Article concludes by offering a variety of refinements to conspiracy law that will help destabilize trust within the conspiracy, cue the defection of conspirators, and permit law enforcement to extract more information from them

Hamdan v. Rumseld: The Legal Academy Goes to Practice

Hamdan v. Rumsfeld is a rare Supreme Court rebuke to the President during armed conflict. The time is not yet right to tell all of the backstory of the case, but it is possible to offer some preliminary reflections on how the case was litigated, the decision, and its implications for the oft-noticed divide between legal theory and practice. In a widely cited article, Judge Harry Edwards lamented the growing disjunction between legal education and the legal profession, claiming that many law schools. .. have abandoned their proper place, by emphasizing abstract theory at the expense of practical scholarship and pedagogy. This observation is truer today than when Judge Edwards penned those words in 1992. Perhaps fueled by an intense desire to move up in published law school rankings, many of the nation\u27s leading law schools have ramped up course offerings and the number of faculty members devoted to legal theory while disparaging practitioners. Like any excluded group, practitioners have begun disparaging the theoreticians in return. We are witnessing one of the most significant developments in the history of American law: the majority of professors on many law faculties are now specializing in areas that are of no obvious relevance to their students\u27 activities upon graduation. This Comment uses Hamdan to illustrate why the disparagement of theory is partially wrong. By examining the litigation of the case, it demonstrates some of the benefits of theory to practice. At least three different theoretical tools were involved in Hamdan: (1) psychological research on framing effects and bias toward compromise; (2) theoretical inquiry into the timing of Supreme Court litigation and the passive virtues ; and (3) economic analysis of penalty default rules and political science research on the veto. The study of each in law school is widely - and incorrectly - believed irrelevant to practice

Rethinking Legal Conservatism

This is the time for us to think through whether an entity as august as the Federalist Society should embrace a move toward a constitutional conservatism. It strikes me as dangerous in terms of the underlying issues, but more importantly, as a step away from the fundamental insight that the Federalist Society had, which was that judges should be restrained because they lack the democratic pedigree of the political branches. There should be an impulse of judicial restraint, and, unless something is clearly unconstitutional, courts should not be mucking around with legislation and declaring it unconstitutional, no matter how novel it may be

Internal Separation of Powers: Checking Today\u27s Most Dangerous Branch from Within

The standard conception of separation of powers presumes three branches with equivalent ambitions of maximizing their powers. Today, however, legislative abdication is the reigning modus operandi. Instead of bemoaning this state of affairs, this piece asks how separation of powers can be reflected within the Executive Branch when that branch, not the legislature, is making much law today. The first-best concept of legislature v. executive checks-and-balances has to be updated to contemplate second-best executive v. executive divisions. A critical mechanism to promote internal separation of powers is bureaucracy. Much maligned by both the political left and right, bureaucracy serves crucial functions: it creates a civil service not beholden to any particular Administration and a cadre of experts with a long-term institutional worldview. Executives and academics routinely malign bureaucracy as inefficient, but the inefficiency presumed in the Founders\u27 design of three overlapping branches needs some internal replication given the seismic shift in power to the Executive Branch. This Article therefore proposes a set of mechanisms that can create checks and balances within the Executive Branch. The apparatus of these restraints is familiar - separate and overlapping cabinet offices, mandatory review of government action by different agencies, civil-service protections for their workers, reporting requirements to Congress, and an impartial decisionmaker to resolve inter-agency conflicts. The idea is to create a more textured conception of the Presidency than either the unitary executivists or their critics espouse

Stochastic Constraint

This essay reviews Power and Constraint: The Accountable Presidency After 9/11 by Jack Goldsmith (2012). With The Terror Presidency, Professor Jack Goldsmith wrote, hands down, the very best analysis of the national security issues surrounding President George W. Bush\u27s tenure. In Power and Constraint: The Accountable Presidency After 9/11, Goldsmith returns to the same set of problems, but adopts a different tack. He argues that the modern wartime Executive is constrained in new ways beyond the traditional system of checks and balances, and that these new constraints combine to create an effective system that checks executive power. Though the modern wartime Executive may disregard traditional limits on presidential power and attempt to act unilaterally, new checks from an aggressive press, a watchful and technologically enabled public, and the legalization of warfare combine to constrain the executive branch. Goldsmith argues that this system is the type of reciprocal restraint of which our Founders would have approved (p. 243). Goldsmith\u27s claim ultimately boils down to one about how presidential constraint arises from a stochastic melange produced by these newly empowered actors. But in his analysis of the constraint imposed on the modern Executive by this new system of checks and balances, Goldsmith fails to account for the values served by good process. Just as with a student\u27s four-page exam (which might reach a correct result but probably will not), the path by which the Executive is constrained matters, because it will significantly affect the substantive quality and sustainability of that end result. Goldsmith\u27s new system of accountability relies on a combination of government leaks and self-checking out of fear of reprisal, whereas the traditional system trusts [a]mbition ... to counteract ambition. The latter system--the one envisioned by the Founders--has significantly fewer side effects attached to the process of checking the Executive. In this Review, the author argues that the particular process employed to constrain the Executive has consequences beyond the mere fact of achieving some level of constraint, and the new system of checks and balances has more costs associated with it than the traditional, constitutionally envisioned system, which primarily relies on government officials. In the end, many different methods might be used to achieve constraint, broadly conceived, but the process chosen to reach that constraint has substantive implications. Part I discusses the relationship between the process used to check the Executive and the substance of the constraints imposed. It contends that, just as the Coase Theorem predicts, the initial set of entitlements will strongly influence the eventual result, and that Coasean analysis provides a helpful frame through which to assess Goldsmith\u27s claim that the new constraints he identifies can substitute for Madisonian checks and balances. Part II analyzes Goldsmith\u27s speculation that the modern cycle of permission and constraint is likely to continue, and suggests that future inquiry should examine whether particular policy solutions could be developed, in advance of the next crisis, that might break this cycle

The Public and Private Lives of Presidents

Focusing on a frequent theme in the executive privilege arguments advanced by the Clinton Administration, Neal Kumar Katyal explores the distinction drawn between the public and private lives of the President, particularly in the Paula Jones and Monica Lewinsky cases. He argues that the Administration\u27s difficulties in asserting executive privilege claims following these cases demonstrate that the public/private distinction is not entirely valid He asserts that, unlike members of Congress who have time when they are not in session, the President is unique in that he is in office twenty-four hours a day. He argues that this special constitutional status puts pressure on the public and private distinction. Professor Katyal maintains that presidents have only a limited reservoir of secrecy from which to draw. Thus, the use of privilege on private mailers such as the Lewinsky investigation not only weakens their ability to claim executive privilege on significant public mailers but it also adversely affects their ability to achieve their political ends

Digital Architecture as Crime Control

This paper explains how theories of realspace architecture inform the prevention of computer crime. Despite the prevalence of the metaphor, architects in realspace and cyberspace have not talked to one another. There is a dearth of literature about digital architecture and crime altogether, and the realspace architectural literature on crime prevention is often far too soft for many software engineers. This paper will suggest the broad brushstrokes of potential design solutions to cybercrime, and in the course of so doing, will pose severe criticisms of the White House\u27s recent proposals on cybersecurity. The paper begins by introducing four concepts of realspace crime prevention through architecture. Design should: (1) create opportunities for natural surveillance, meaning its visibility and susceptibility to monitoring by residents, neighbors, and bystanders; (2) instill a sense of territoriality so that residents develop proprietary attitudes and outsiders feel deterred from entering a private space; (3) build communities and avoid social isolation; and (4) protect targets of crime. There are digital analogues to each goal. Natural-surveillance principles suggest new virtues of open-source platforms, such as Linux, and territoriality outlines a strong case for moving away from digital anonymity towards psuedonymity. The goal of building communities will similarly expose some new advantages for the original, and now eroding, end-to-end design of the Internet. An understanding of architecture and target prevention will illuminate why firewalls at end points will more effectively guarantee security than will attempts to bundle security into the architecture of the Net. And, in total, these architectural lessons will help us chart an alternative course to the federal government\u27s tepid approach to computer crime. By leaving the bulk of crime prevention to market forces, the government will encourage private barricades to develop - the equivalent of digital gated communities - with terrible consequences for the Net in general and interconnectivity in particular

Disruptive Technologies and the Law

In the past two decades, the concept of disruptive technology has gone from theory, to buzz word, to the captivation of the popular imagination. Disruptive innovation goes beyond improving existing products; it seeks to tap unforeseen markets, create products to solve problems consumers don\u27t know that they have, and ultimately to change the face of industry. We are all the beneficiaries of disruption. Every smartphone carrying, MP3-listening, Netflix-watching consumer is taking advantage of technologies once unimaginable, but that now feel indispensable. Silicon Valley\u27s pursuit of disruption will continue to benefit and delight a world of consumers. But where disruption may once have been the secondary result of innovation, disruption has become a goal in and of itself. Today, I want to urge a cautionary note: The tech community\u27s solipsistic focus on disruption, to the exclusion of human and legal values, can be problematic. We can see these potential problems in the development of three areas: mass surveillance, 3D printing, and driverless cars