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Volume 92 Number 3 February 2008

ARTICLES

Courtroom Demeanor: The Theater of the Courtroom
Laurie L. Levenson

CRIMINAL LAW—What is it that we want the American criminal courtroom to be? This is one of the fundamental questions facing our criminal justice system today. Although we have constructed an elaborate system of evidentiary rules and courtroom procedures, an American criminal trial is much more than a mere sum of its evidentiary parts. Rather, it is a theater in which the various courtroom actors play out the guilt or innocence of the defendant for the trier of fact to assess.

This article focuses on how a defendant's nontestifying demeanor can affect jurors' decisions. Because such evidence is not technically evidence, we have assumed jurors will not use it in reaching their decisions. However, we know differently. Given how jurors decide cases, it is time to acknowledge the impact of defendants' nontestifying demeanor on jury deliberations and guide jurors in the use of such information.

More is not Always Better than Less: An Exploration in Property Law
Daphna Lewinsohn-Zamir

PROPERTY LAW—The common intuition that "more is better than less" often lies at the heart of arguments regarding legal rules. It supports the belief that the right to take an extreme measure with respect to property encompasses the right to take a more moderate one. For example, scholars have claimed that since owners are free not to transfer their assets—but rather destroy or sell them before death—then they should be entitled to bequeath those assets subject to conditions. As more property is better than less, and some property better than none at all, it is better to inherit property subject to restrictions or conditions than to inherit nothing. It follows that the law should permit moderate measures, lest owners are induced to opt for extreme measures, resulting in less property to other individuals.

This article advances the counterintuitive view that more is not always better than less. First, this article shows that numerous legal rules reject the "more is better than less" argument, and restrict moderate measures relating to property more than extreme measures. In many cases, owners have more freedom to use property than to avoid using it, more pow-er to destroy property than to modify or neglect it, and more liberty not to transfer property than to transfer it conditionally. Second, this article argues that this seemingly puzzling state of affairs rests on sound normative grounds and on widely tested behavioral observations. Three justifications are advanced for greater scrutiny and intervention in the case of moderate—rather than extreme—measures regarding property rights: protecting potential property transferees, reducing the incidence of low-valuing owners, and correcting distributive errors. These rationales can serve to evaluate and critique existing rules in property law as well as in other legal spheres, such as labor law, zoning law, and contract law.

Holdup, Royalty Stacking, and the Presumption of Injunctive Relief for Patent Infringement: A Reply to Lemley and Shapiro
J. Gregory Sidak

PATENT AND TRADE LAW—Professors Mark Lemley and Carl Shapiro have presented a theoretical argument for weakening the presumption of injunctive relief in patent infringement cases. In this Article, I evaluate the Lemley-Shapiro theoretical model of "patent holdup." I dispute its main finding that the threat of an injunction inflates royalty payments in many cases relative to a hypothetical benchmark royalty rate. I also dispute the Lemley-Shapiro policy prescriptions for patent law reform, which would remove the presumption of injunctive relief in cases where the patented product is a component of a larger product or the patentee is a nonpracticing entity. I conclude that the Lemley-Shapiro theoretical model is not correctly specified, and, even if it were, the hypothetical benchmark royalty rate against which the voluntarily negotiated royalty rate is compared is downwardly biased. I also find that their own model does not support their policy prescriptions. A high priority for any revision of patent policy should be to create a more efficient market for the rights to inventions.

EXCHANGE

The Behavioral Economics of Consumer Contracts
Oren Bar-Gill

The Neoclassical Economics of Consumer Contracts
Richard A. Epstein

CONTRACT LAW—In the past decade, behavioral economics has established itself as a contender to the throne of neoclassical economics in the economic analysis of law. The pros and cons of behavioral as compared to neoclassical economics have been vigorously debated at the general, methodology level. But the success or failure of the behavioral challenge will be judged by its ability to improve upon neoclassical economics—both descriptively and prescriptively—in specific legal applications. Consumer con-tracts provide an important test case for behavioral economics. In this Exchange, we offer the first comprehensive debate between the behavioral and neoclassical perspectives as applied to the law and economics of consumer contracts.

NOTES

Interpreting the Law of War: Rewriting the Rules of Engagement to Police Iraq
Karen P. Seifert

LAW OF WAR—The law of war governs the U.S. military’s conduct in Iraq. This body of law is interpreted and explained to the soldier through the issuance of rules of engagement, which instruct the soldier about when the use of force is allowed. Since the end of major combat operations in Iraq, the U.S. military has been largely acting as a police force. Insurgents’ tactics present soldiers with situations the current rules of engagement are ill-equipped to handle. This note contends that the rules of engagement issued to the military in Iraq interpret the law of war in a manner that is overly restrictive for this policing activity. As a result, soldiers are unable to respond appropriately to hostile actions, putting both themselves and civilians at risk. Such an interpretation is not required by the law of war. This note first discusses the foundations of the law of war and the development of the rules of engagement. It then analyzes the current rules of engagement as they are used to fight the insurgency in Iraq. Finally, it suggests the development of new rules of engagement for soldiers undertaking policing roles in Iraq. It advocates for a model based on U.S. federal law enforcement, supplemented by the development of judgment-based training.

Moving from "Broken Windows" to Healthy Neighborhood Policy: Reforming Urban Nuisance Law in Public and Private Sectors
Bryan M. Seiler

PROPERTY LAW—City and state governments throughout the country are increasingly turning to public nuisance law as a way to preserve public order in urban neighborhoods. Many cities have established "problem property" units to encourage neighborhoods to actively report public nuisance conditions and behaviors. This public order enforcement certainly fills an enforcement gap for both criminal and landlord-tenant law, but its misuse threatens dire consequences for the disenfranchised urban poor. Public nuisance law is a powerful injunctive force that can rapidly change the composition of neighborhoods, and, used improperly, can be a means of imposing cultural, economic, and racial homogeneity.

Despite the extensive academic literature on urban renewal, there is little written about the authority and advisability of the current policy trend towards the use of public nuisance law. This note attempts to fill this scholarly void in several ways. First, it provides an overview of the history and present application of public nuisance law, with particular attention paid to the expansion of the doctrine during the nineteenth century. Second, it summarizes the many weaknesses of the "broken windows" policy system that currently dominates public nuisance law. Finally, it proposes a novel combination of both public and private reforms to state and local public nuisance law to ensure the proper use of public nuisance law. In particular, this note argues that the infusion of economic value into an area of entitlement presents the best hope of striking a balance between enforcing public order while protecting vulnerable residents. Though difficult, this is a balance that all healthy urban neighborhoods must actively seek and maintain.