Topological censorship from the initial data point of view

We introduce a natural generalization of marginally outer trapped surfaces, called immersed marginally outer trapped surfaces, and prove that three dimensional asymptotically flat initial data sets either contain such surfaces or are diffeomorphic to R^3. We establish a generalization of the Penrose singularity theorem which shows that the presence of an immersed marginally outer trapped surface generically implies the null geodesic incompleteness of any spacetime that satisfies the null energy condition and which admits a non-compact Cauchy surface. Taken together, these results can be viewed as an initial data version of the Gannon-Lee singularity theorem. The first result is a non-time-symmetric version of a theorem of Meeks-Simon-Yau which implies that every asymptotically flat Riemannian 3-manifold that is not diffeomorphic to R^3 contains an embedded stable minimal surface. We also obtain an initial data version of the spacetime principle of topological censorship. Under physically natural assumptions, a 3-dimensional asymptotically flat initial data set with marginally outer trapped boundary and no immersed marginally outer trapped surfaces in its interior is diffeomorphic to R^3 minus a finite number of open balls. An extension to higher dimensions is also discussed.Comment: v2: Appendix added, Theorem 5.1 improved, other minor changes. To appear in J. Diff. Geo

Lumping, Fairness, and Single People

This essay explores the distributional impact that three forms of lumping have on single people without children: seat-assignment and seat-bargaining on public transportation, work-hour allocation, and single-family zoning. The first two involve lumps pursued by individuals outside of any legal regime; the last involves lumping by law. In all three, I submit, we tend to choose to devalue—or perhaps do not even perceive—the costs faced by the single person, and to assign relatively juiced-up value to the costs faced by those with families. The result in these arenas is that both society and law routinely externalize (hidden) costs onto single people and call the outcome both efficient and just when it might in fact be anything but

Courts Beyond Judging

Across all fifty states, a woefully understudied institution of government is responsible for a broad range of administrative, legislative, law enforcement, and judicial functions. That important institution is the state courts. While the literature has examined the federal courts and federal judges from innumerable angles, study of the state courts as institutions of state government — and not merely as sources of doctrine and resolvers of disputes — has languished. This Article remedies that oversight by drawing attention for the first time to the wide array of roles state courts serve, and by evaluating the suitability of both the allocation of these tasks and the various procedures by which they are carried out across the country.In every state, on top of the ordinary adversarial dispute-resolution function that we expect judges to serve, it is state court judges who are charged with administrative functions like approving applications to change one’s name, to enter the legal profession, or to exercise constitutional rights like accessing abortion care without parental knowledge or consent. And it is often state court judges who are charged with or who have taken on a range of legislative and policymaking functions like redistricting and establishing specialized criminal courts for veterans, persons in need of drug treatment, and others. And in some states, it is state court judges who have the law enforcement power to decide whether a prosecutor’s charging choice was a wise exercise of her discretion. These are not mere odds and ends of governing either; weighty interests hang in the balance across the board.In addition to developing this more complete portrait of the state courts — and of important variation in how these roles are structured across the states — this Article examines whether the interests at stake in each context are appropriately served when state court judges handle them. In some arenas, they are, and this Article places these facets of state court practice on firmer theoretical footing. In others, however, there is cause for concern. With respect to these tasks, this Article argues that state court judges need to be better guided by statute and subject to reason-giving and record-developing requirements that would channel their discretion, improve their decisionmaking, and enable more rigorous appellate review. But most important of all, this Article calls for states to make more conscious choices about structuring the roles they assign to state courts, and for scholars to devote more careful attention to these powerful and nuanced institutions

Judicial Deference and Institutional Character: Homeowners Associations and the Puzzle of Private Governance

Much of the study of judicial review of governing institutions focuses on the institutions of public government at the federal, state, and local levels. But the courts\u27 relationship with private government is in critical need of similar examination, and of a coherent framework within which to conduct it. This Article uses the lens of homeowners associations-a particularly ubiquitous form of private government-to construct and employ such a framework. Specifically, this Article proceeds from the premise that judicial deference is less appropriate the more unaccountable a governing institution is, and therefore develops a set of tests for institutional accountability. Applied to the homeowners association, this accountability analysis reveals that the analogy most often resorted to by state courts-that of the corporation-is inappropriate, because homeowners associations and corporations have fundamentally different internal accountability mechanisms. They therefore require different sorts of judicial review. The Article closes by employing the same accountability tests to show that a more fitting deference regime for homeowners associations could be drawn from an analogy to administrative agencie

Judges, Judging and Otherwise

Ask the average person to imagine what a judge does, and the answer will most likely be something right out of a courtroom from Law & Order — or Legally Blonde, Just Mercy, My Cousin Vinny, Kramer vs. Kramer, or any of the myriad law-themed movies and television shows. A judge is faced with a dispute brought by some parties and their lawyers and is charged with resolving it, whether it be a breach of contract, a tort action, a competing claim over property, a disagreement about the meaning of a statute, some accusation that someone has committed a crime, and so on

Taking Data

Technological development has created new forms of information, altered expectations of privacy, and given law enforcement more tools to examine that information and intrude on that privacy. One crucial facet of these changes involves internet service providers (ISPs): as people expose more of their lives to their ISPs—all the websites they visit, people they communicate with, emails they send, files they store, and more—law enforcement efforts to access that data become more and more common. But scholars and policymakers alike recognize that the existing statutory frameworks governing those efforts are based on obsolete technology and strike balances that are difficult to justify and that are both over- and underprotective of privacy.This Article proposes a new approach to regulating government investigations of data that has been shared with ISPs—one that is inspired by a legal tool designed to achieve the very balance between public benefits and private burdens that has thus far proven elusive. This tool is the Takings Clause. Under the Takings Clause, the government can acquire private property, including intangible and intellectual property, but this wide-ranging power is disciplined by the requirement that the government pursue a public purpose and pay just compensation for the property it takes. This Article argues that adapting these features of the takings framework to govern the investigation of ISP-held data would be feasible, theoretically and doctrinally sound, and normatively desirable.In making this argument, this Article addresses one of the primary problems with the various existing mechanisms by which government conducts investigations online, which is that the costs of diminished privacy fall on the civilian targets of those investigations. The result is that law enforcement does not adequately consider these costs when making investigation decisions. Acquiring information under a takings-inspired regime, by contrast, would trigger a requirement to compensate the person whose privacy has been diminished and thus impose a direct cost on the government entity conducting the investigation. This obligation to pay would force the investigating entity to be more thoughtful about which investigations are the highest priorities, most likely to yield valuable information, and most tailored to achieve their purposes

Judicial Deference and Institutional Character: Homeowners Associations and the Puzzle of Private Governance

Much of the study of judicial review of governing institutions focuses on the institutions of public government at the federal, state, and local levels. But the courts\u27 relationship with private government is in critical need of similar examination, and of a coherent framework within which to conduct it. This Article uses the lens of homeowners associations-a particularly ubiquitous form of private government-to construct and employ such a framework. Specifically, this Article proceeds from the premise that judicial deference is less appropriate the more unaccountable a governing institution is, and therefore develops a set of tests for institutional accountability. Applied to the homeowners association, this accountability analysis reveals that the analogy most often resorted to by state courts-that of the corporation-is inappropriate, because homeowners associations and corporations have fundamentally different internal accountability mechanisms. They therefore require different sorts of judicial review. The Article closes by employing the same accountability tests to show that a more fitting deference regime for homeowners associations could be drawn from an analogy to administrative agencie

\u3ci\u3eChevron\u3c/i\u3e\u27s Regrets: The Persistent Vitality of the Nondelegation Doctrine

Since the Chevron decision in 1984, courts have extended to administrative agencies a high level of deference when those agencies reasonably interpret ambiguous statutes, reasoning that agencies have more technical expertise and public accountability than courts. However, when the agency’s interpretation implicates a significant policy choice, courts do not always defer. At times, they rely on principles of nondelegation to rule against the agency interpretation and require that choices be made by Congress instead. Chevron makes no explicit exception for significant policy choices, but in cases like MCI v. AT&T and FDA v. Brown & Williamson, the Supreme Court has manipulated the application of the Chevron test to find statutory clarity and preclude deference to agencies for exactly this reason. Led by litigants who highlighted the separation of powers implications of the agency’s interpretations, the Court has suggested both that the principles of nondelegation remain a constitutional constraint and that alluding to them, even without resort to some canon of interpretation, is a viable litigation strategy. This Note exposes and defends the persistent, if unspoken, role played by the principles of nondelegation in the jurisprudence of the administrative state in an era of Chevron deference. It draws a strategic and doctrinal framework from which to challenge agencies’ statutory interpretations and presents a live circuit split involving the authority of the Food and Drug Administration to criminalize certain failures to maintain research records that is a ripe opportunity for applying that framework

Towards a Principled Representation of Discourse Plans

We argue that discourse plans must capture the intended causal and decompositional relations between communicative actions. We present a planning algorithm, DPOCL, that builds plan structures that properly capture these relations, and show how these structures are used to solve the problems that plagued previous discourse planners, and allow a system to participate effectively and flexibly in an ongoing dialogue.Comment: requires cogsci94.sty, psfig.st