I INTRODUCTION Over the past four decades of teaching and studying First Amendment law, I have witnessed the resolution, or at least the clarification, of many free and press issues. There are, however, persistent issues--those elusive or intractable tensions between free expression and other basic human liberties--that deserve particularly close scrutiny. Three such issues occasion this article: tensions between free expression and privacy, civility, and equality. Examples of each tension abound: Can an aggressive reporter or photographer be barred from using high-tech tools such as infrared cameras and parabolic microphones to gather images and conversations through the walls of a house or office? Can a person be jailed for cursing and using vulgar four-letter words in public? Can hate speech be curbed on a college campus to protect vulnerable groups in society? It should be simple to answer such questions, but instead is exceedingly difficult because of a deep national ambivalence toward the proper balance betwe en free expression and other values. As a nation, we are equally committed to freedom of and to those basic values of privacy, civility and equality. We expect the courts to strike the proper balance, to resolve these tensions in ways that will permit us to preserve (and our laws to serve) both sets of values equally well. When the courts fail or falter in this effort, we are deeply disappointed. We expect judges to discover or devise paths of reconciliation, even though they have eluded the rest of us. In the three areas of tension on which this article focuses, the courts have been notably unsuccessful and a breakthrough appears unlikely. Perhaps we should simply acknowledge that resolution of these issues is not possible and that we must accept certain intractable tensions within our First Amendment jurisprudence. Maybe, indeed, we should even be grateful that so few truly irreconcilable conflicts exist. II PRIVACY: WILL THE TRUTH SET YOU FREE? In an ideal system, the legal import of truth would be unmistakably clear. Factual correctness would either provide a complete defense to any claim for invasion of privacy or be legally irrelevant. The courts of this country have, however, been curiously ambivalent about the relationship between privacy and truth. Even individual Supreme Court Justices may fairly be accused of vacillation. One might easily forget that Justice Louis D. Brandeis, who late in his career framed the case for maximum freedom of expression most eloquently, (1) had as a young lawyer written the seminal article first advancing the rationale for imposing legal liability on those whose publication of unwelcome truth invaded the privacy of others. (2) Such inconsistency has persisted in ways that underscore the inherent difficulty of the issue. The Supreme Court has consistently declined to recognize truth as an absolute defense when reviewing criminal or civil judgments against those who have published truthful but private information, although the Justices have never sustained such a claim when the accuracy of the material was undisputed. What the Court has said on this issue is helpful but not dispositive: [S]tate action to punish the publication of truthful information seldom can justify constitutional standards. (3) The crucial word, of course, is seldom; Chief Justice Burger chose not to say never. Such a formula poses this intriguing question: Why has the high Court never flatly foreclosed such claims against publishers of truthful information? Instead of setting that standard, the Court has imposed three conditions: (1) The information must be accurate; (2) it must have obvious public interest; and (3) it must not have been unlawfully obta ined. (4) The first criterion is obvious enough; spreading false information would not only subject the publisher to civil liability for defamation, but also would elicit little sympathy even from a court generally committed to protecting free expression and communication. …

Shaded arrow indicates direction of evolution of formal institutions.8. Id. at 66. 9. What it takes to make a norm binding is itself a matter of intense debate.There are two main relevant concepts: (1) incentive-compatible or self-enforcing norms, which create internal incentives for compliance coincident with the goals of participants; and (2) credible commitment, where the entity

I INTRODUCTION On July 3, 2001, the Tampa, Florida, Police Department began using FaceIt, a video surveillance system based on face-recognition software, in Ybor City, a downtown nightilfe district. (1) Three dozen security cameras scanned crowds while the software, using complex mathematical formulas to represent facial features, searched for database matches to the faces of wanted criminals. (2) When no match was found, the scanned image was deleted, a precaution voluntarily undertaken by the system's owner, Visionics Corporation of Jersey City, New Jersey, but not required by law. (3) If a match was found, however, a systems operator would then determine whether there was enough of a match to notify a uniformed officer to investigate .and possibly make an arrest. (4) Signs in the area warned passersby, Smart CCTV in use, though most interviewed for a news story on the system did not know what the message meant. (5) Meanwhile, the Pentagon is funding a fifty-million dollar initiative to use face-recognition technology a s a means for combating terrorism.6 Informal interviews revealed widely diverging views of the technology among Tampa's citizenry. Many saw it as an invasion of privacy reminiscent of George Orwell's 1984, which predicted a totalitarian future based on constant, state-initiated surveillance of its subjects. (7) Police and local political officials argued that the system promotes safety, but privacy advocates objected to the city's recording or utilizing facial images without the victims' consent, (8) some staging protests against the FaceIt system. (9) Privacy objections seem to be far more widely shared than this small protest might suggest. The objectors cover the entire political spectrum. House Majority Leader Richard Armey, for example, in asking for a report on federal surveillance spending, had this to say about the subject: The most serious threats to our freedom often advance in small steps. Face recognition systems may one day provide significant benefits in military applications....We are taking a step in the wrong direction if we allow this powerful technology to be 10 turned against citizens who have done no wrong. (10) The American Civil Liberties Union has joined Armey's call for caution, describing the FaceIt system as subjecting the public to a digital lineup. (11) Others worry that FaceIt and similar systems will be used by government agencies to track and catalogue the movements of innocent citizens, possibly for political reasons. (12) Little, if any, legislation protects against these dangers, yet it is unlikely that the Fourth Amendment to the United States Constitution does either. The wisdom of implementing the system has not yet been subjected to serious democratic deliberation. (13) The FaceIt system represents the tip of the iceberg in the growing potential use of surveillance technologies, including ray-gun distance frisks, (14) mandatory, nationwide DNA databases covering all United States residents, (15) long-distance, hard-to-detect cyber-searches, (16) retinal scanning, (17) and radioactive tag alerts. (18) This list sounds like far-fetched science fiction, but all of these technologies are either available now or are currently being developed, and many advocates of public safety and more effective law enforcement--especially in an era of rising dangers from terrorism--favor broad implementation. (19) The advance of technology has spread so far and so fast that now even federal judges face routine mass-monitoring by the state. In March 2001, the judges of the Ninth Circuit Court of Appeals learned that their computers had been monitored by the Administrative Office of the United States Courts (AO). (20) The AO's goal had been to discourage activities unrelated to the judiciary's work, like listening to music or surfing the web for pornography. …

Nancy E. Walker (*) I INTRODUCTION The problems associated with assessments of children's reports of victimization in criminal proceedings came to national attention during the 1980s and 1990s in a series of highly publicized trials of daycare staff. (1) In the Preschool case, (2) more than 350 children claimed to have been molested at the preschool and a number of public locations including a market, a car wash, and a church. (3) During interviewing, some children reported that, in addition to experiencing sexual abuse, they had been taken on plane rides and forced to drink blood and to watch animals being mutilated. (4) Prosecutors said that the suggestive used to elicit retrospective reports from such young children were appropriate, whereas the defense claimed that the interviewing and videotaping procedures were inept. (5) When the trial ended in January of 1990, several jurors reported that they believed some of the children had in fact been molested but that the state had failed to prove the identity of the perpetra tor(s). (6) This three-year trial--the longest-running criminal trial in the history of the United States--cost taxpayers between thirteen and fifteen million dollars, produced no convictions, and destroyed the lives of many individuals connected to the case. (7) In the end, it was not possible to determine whether the reports provided by the children interviewed were accurate. Research completed since the trial shows that the skill of the interviewer directly influences whether a child relates a true memory, discusses a false belief, affirms details suggested by others, embellishes fantasies, or provides no information at all. (8) For example, Sena Garven and colleagues demonstrated that the coercive used by interviewers in the case elicited substantially more false allegations from children than did simple suggestive questions. (9) This finding is particularly important given the fact that suggestive questions have long been known to have a negative impact on the quality of children's reports. (10) When exposed to the McMartin techniques for less than five minutes, children in the study conducted by Garven and colleagues showed error rates of nearly sixty percent. (11) Moreover, children subjected to social influence became more acquiescent as the interview proceeded. (12) As these findings demonstrate, the specific employed by an interviewer have a direct effect on the quality of the report obtained, a conclusion that has been heeded in recent appellate court opinions. (13) For example, in State v. Michaels, the New Jersey Supreme Court considered whether the state's interview in the case had been so coercive or suggestive that they had a capacity to distort substantially the children's recollections of actual events and thus compromise the reliability of the children's statements and testimony based on their recollections. (14) An amicus brief signed by forty-five scientists provided the appellate court with a summary of research relevant to issues associated with the forensic interviewing of children and demonstrated the causative link between the use of highly suggestive interviewing and children's flawed memories. (15) The information presented in the brief contributed to the appellate court's decision to reverse the defendant's convicti on. (16) As the Preschool and Michaels cases illustrate, truth-finding involving assessments of children's retrospective reports may be seriously compromised, if not completely obscured, when interviewing are faulty. What these cases teach is that it is necessary to establish and maintain standards for quality control in conducting and evaluating forensic interviews of children. Interviewers require information from both social science and the law, such as information on child development, memory, and communication as well as information on legal standards for assessing the admissibility of interview evidence. …

WARREN NEWTON [*] I INTRODUCTION About ten years ago, after fellowships and clinical experience in a community setting, I had my first experience as a ward attending in a university hospital. [1] We were working with cardiac patients, and I was struck by the common treatment each patient received. No matter what the symptoms, patients received an exercise treadmill, an echocardiogram, and were put on a calcium channel blocker. [2] This was remarkable at the time because there were in excess of thirty randomized controlled trials showing the benefit of beta-blockers, a different class of medicines, to treat patients following a heart attack. Indeed, by 1990, there was initial evidence that calcium channel blockers not only failed to improve outcomes, but actually made them worse. The point is not to criticize the medical culture at that hospital--similar examples can be found at every medical center--but rather to explore why there was so much fondness for calcium channel blockers. One factor was the substantial drug company support of faculty research on silent myocardial ischemia. Another factor was what might be called medical fashion. The most likely explanation, however, was more fundamental. For my cardiology colleagues, it was biologically plausible that calcium channel blockers were better than betablockers. Like beta-blockers, calcium channel blockers reduce heart rate and myocardial wall stress, but they lack the side effects of beta-blockers. In other words, what was important to my colleagues was not the outcome of the critical trials, but our understanding of the mechanisms of disease. This is an example of the tension between rationalism and empiricism in medicine. Rationalism is the search for and emphasis on basic mechanisms of disease, which then color all clinical decisions. Empiricism is defined as the emphasis on the outcomes of individual patients and groups of patients. My thesis is that there is an ongoing and fundamental tension between these two different ways of thinking. While these ways of thinking can be complementary, the tension persists, exploding around specific clinical and legal controversies. Understanding the tension between rationalism and empiricism provides important background in considering the role of expert advice. Part II of this article explores the roots of rationalism and empiricism in the Hippocratic tradition. Using the Flexner report as a text, Part III emphasizes the triumph of the rationalists in the founding of modern medicine. Part IV briefly describes the development of clinical epidemiology and the evidence-based medicine over the last thirty years. Part VI attempts to explicate how this tension illuminates fundamental clinical and policy questions that doctors, the health care system, and the legal system confront today. My goal is not to present a detailed explication of the epistemology of medical science, but rather an intellectual history [3] sketching out what has animated the thinking of clinicians. II HIPPOCRATIC ROOTS The Hippocratic tradition rests on many authors, not just the historical Hippocrates of Cos, but a plethora of later writers through antiquity, from Greece to Alexandria to Rome. This article focuses on two major sects of that tradition that dominated in Alexandria from the fourth century B.C. through Roman times. [4] The dominant medical influence in the classical age was rationalism. Tracing its origin from Thessalos and Drakan, the sons of Hippocrates, rationalism is the oldest of the sects. Thessalos and Drakans emphasized the importance of natural philosophy in medicine, believing that where observation failed, reason might surprise. [5] The fundamental theory was the doctrine of humours as first taught by Pythagoras: The body of man has in itself blood, phlegm, yellow bile, and black bile:... [N]ow he enjoys the most perfect health when those elements are duly proportioned to one another in respect of compounding power and bulk and when they are perfectly mingled. …

In the aftermaths of both World War I and World War II, the United States engaged in significant domestic political debates over its proper place in the world.President Wilson's brainchild, the League of Nations, was the centerpiece of the first debate, and the United Nations the centerpiece of the second.The conventional wisdom is that the dark forces of isolationism defeated Wilson's League in the Senate, and that the advent of the Cold War gridlocked the nascent United Nations, preventing it from assuming the role intended for it in preserving international peace and security.While the mythology surrounding both of these important debates is wrong and incoherent in many respects, 1 there is no doubt of the far-reaching implications of American political decisions attendant on them.Neither the debate over the League nor the one over the United Nations settled the issue of America's proper relationship with other governments and international organizations.During the Cold War, there was little or no occasion for the debate to re-emerge in the United States because the life-or-death struggle with Communism dominated U.S. attention, at least at the national level.Nonetheless, below the surface, largely in academic circles, those debates favoring international legal measures to constrain the independence of nation states continued their efforts, both here and in Europe.Although motivated by a wide range of considerations, many of which were contradictory, one broad theme was that it was the nation state itself, and the seemingly inescapable at-

MADELINE MORRIS [*] I INTRODUCTION The Rome Treaty for an International Criminal Court ("ICC") [1] provides for the establishment of an international court with jurisdiction over genocide, war crimes, and crimes against humanity. [2] Those crimes often are committed by or with the approval of governments. It is unlikely that a government sponsoring genocide, war crimes, or crimes against humanity would consent to the prosecution of its national for his or her participation. Therein lies the problem with an international criminal court that may exercise jurisdiction only if the defendant's state of nationality consents. The very states that are most likely to be implicated in serious international crimes are the least likely to grant jurisdiction over their nationals to an international court. The ICC Treaty avoids the dismal prospect of an international criminal court that cannot obtain jurisdiction over international criminals. The treaty provides that the ICC may exercise jurisdiction even over nationals of states that are not parties to the Treaty and have not otherwise consented to the court's jurisdiction. Article 12 provides that, in addition to jurisdiction based on Security Council action under Chapter VII of the United Nations Charter and jurisdiction based on consent by the defendant's state of nationality, the ICC will have jurisdiction to prosecute the national of any state when crimes within the court's subject-matter jurisdiction are committed on the territory of a state that is a party to the treaty or that consents to ICC jurisdiction for that case. That territorial basis would empower the court to exercise jurisdiction even in cases where the defendant's state of nationality is not a party to the treaty and does not consent to the exercise of jurisdiction. [3] The United States has objected to the ICC Treaty on the ground that, by purporting to confer upon the court jurisdiction over the nationals of non-consenting non-party states, the treaty would bind non-parties in contravention of the law of treaties. [4] This objection has given rise to a heated controversy that has focused on the particulars of the international law of treaties and of jurisdiction. On close inspection, however, we can detect a more basic issue struggling to make its way to the surface. The fundamental issue concerns the nature of the ICC as an international institution. The jurisdictional structure of the ICC is based on a view of the ICC as a criminal court, tout court. In this view, the job of the ICC is to adjudicate the guilt or innocence of individuals accused of recognized international crimes. With this model in mind, it makes sense to give the court meaningful powers of compulsory jurisdiction, lest perpetrators of serious international crimes should escape justice. From this perspective one might reason that, if the court's subject-matter jurisdiction is limited to established international crimes and the process of the court is fair, then no state-whether party or non-party-should have legitimate objections to the court's exercise of jurisdiction over its nationals. The deficiency of this approach is that it reflects only one of the two types of cases that the ICC will be called upon to decide. In addition to the cases that are concerned solely with individual culpability, there will be ICC cases that focus on the lawfulness of official acts of states. Even while individuals, and not states, will be named in ICC indictments, there will be cases in which those individuals are indicted for official acts taken pursuant to state policy and under state authority. These official-act cases may well include cases in which an official state act is characterized as criminal by the ICC prosecutor (acting, very possibly, on a referral from an aggrieved state), while the state whose national is being prosecuted maintains that the act was lawful. One can readily imagine ICC cases in which the act forming the basis for the indictment was a military intervention, deployment of a particular weapon, recourse to a certain method of warfare, or other official conduct that the responsible s tate maintains was lawful. …

JAMES D. COX [*] I INTRODUCTION One of the most significant characteristics of the Federal Securities Act of 1933 [1] is its durability. Even though the Securities Act has been amended several times since its enactment, the architecture and fundamental assumptions of the Act remain largely unchanged from their Depression-era beginnings. The Securities Act's underlying structure has not changed even though remarkable changes in securities markets have occurred, including the evolution of institutional investors' domination of securities markets, investment strategies and capital-raising occurring across borders, and the emergence of digital transmissions to replace the paper-based communication system that existed when the Act became law. The Securities Act's critics may see the continuing presence of regulatory tenets formed in the 1930's as further evidence of the necessity of radical reform of the U.S. securities laws. They may also argue forcefully that continuing adherence to the status quo reflects the political truth that powerful co alitions--regulators, investment bankers, accountants, and attorneys--have an interest in preserving the provisions of the Securities Act of 1933. [2] Any change in the public offering process introduces the potential for lost rents for each of these constituencies; therefore, that change meets resistance. On the other hand, we can argue that the continuing vitality of a securities law enacted seven decades ago underscores the wisdom of its fundamental tenets, its inherent flexibility, and the SEC's wise oversight of its provisions. In this article, I discuss six fundamental tenets that should guide the regulation of public offerings of securities. The approach followed in Part II assumes that regulation is to be re-examined from the ground up, with no political or regulatory constraints. Political reality is, however, re-introduced in Part III, which examines the reach of the exemptive authority that the SEC currently possesses, in order to determine whether the principles advanced in Part II can be carried out without Congressional action. Consideration of the scope of the SEC's authority to change its regulatory approach reflects a stark political reality: It is not likely that a major overhaul of the U.S. securities laws will be undertaken by Congress. Even if legislative reform were undertaken, it is unlikely to achieve better results than those that can be accomplished under the existing framework of the Securities Act. II REGULATORY TENETS Whether it is the debates within Congress or the frequent expressions of courts, the incantations regarding the broad objective of the securities laws are the same: to provide full and fair disclosure for the protection of investors and to enhance the allocational efficiency of U.S. capital markets. These regulatory goals are not unique to the United States. The quest for improved allocational efficiency, deterrence of fraud, and enhanced investor decision-making are the objectives pursued by securities laws throughout the world community. [3] Moving from these objectives to their implementation within a digital, globalized economy requires that the underlying tenets of regulation be isolated and reexamined. Six such tenets are considered below. A. The Filtration Process in the Digital Age The dominant theme animating the securities laws is the facilitation of informed, intelligent investment decisions. At the same time, the current view is that the individual investor does not read the prospectus produced by the registration process. The Securities Act's provisions support this hiatus between its stated objective and the reality of practice among individual investors by mandating only that the prospectus reach the investor after the security has been purchased. [4] Nevertheless, the Securities Act still can be seen as fulfilling its objective despite this important omission, because its realistic objective transcends the information needs of the individual purchasing investor. …

ROBERT R. KORSTAD [*] JAMES L. LELOUDIS [**] I INTRODUCTION During the summers of 1964 and 1965, more than 300 college students--black and white, men and women--fanned out across the state of North Carolina in a bold campaign to defeat poverty and, as they saw it, to uplift the poor. They were the foot soldiers of the North Carolina Fund (Fund), a pacesetting antipoverty program of the 1960s. The story of those students and their summers of service is important to recount for many reasons, but most especially because it highlights the potential of volunteerism for expanding the boundaries of democratic participation. That point was driven home for us several years ago when we were approached by a number of young people who were active in the community service movement, that broad-based volunteer effort initiated during the 1980s by college and high school students who were eager to develop modes of social action appropriate to the challenges of their own time and generation. The young people who came to us all had demonstrated a remarkable capacity for leadership--t hey included the founders of such groups as the Campus Outreach Opportunity League, [1] Public Allies, [2] and Empty the Shelters [3]--but they also complained of feeling they were laboring in isolation. How, they wondered, might the past inform contemporary efforts to take their work beyond the walls of the university, to move students from service to broader civic engagement, and to build new alliances to address enduring social problems: poverty, homelessness, illiteracy, and racial inequality? Since that encounter, much of our research on the North Carolina Fund and its student volunteers has focused on trying to answer that question. In this article, we trace the history of the Fund's Volunteers program, provide an analysis of the contribution that those students made to fighting poverty in North Carolina, and evaluate the impact of that experience on the lives of the Volunteers themselves. We also consider more broadly the role that the North Carolina Fund played in shaping national antipoverty policy. II THE ESTABLISHMENT OF THE NORTH CAROLINA FUND The Fund was established in 1963 by Governor Terry Sanford, who had been elected with President John F. Kennedy. When Sanford took office in 1961, North Carolina's factory workers earned some of the lowest industrial wages in the nation; thirty-seven percent of the state's residents had incomes below the federal poverty line; half of all students dropped out of school before obtaining a high school diploma; and one-fourth of adults twenty-five years of age and older had less than a sixth-grade education and were, for all practical purposes, illiterate. [4] Although shocking, those conditions had long been a part of everyday life in the state. Since the turn of the century, North Carolina's political and business leaders had underfunded human capital development for vast sectors of the population. Public policies such as segregation, disenfranchisement, anti-unionism, and miserly expenditures on public education effectively maintained a racially divided and low-wage labor force. By the early 1960s, however, p overty was moving from the shadow of neglect to the forefront of public policy agendas. The civil rights movement, now at high tide, was challenging the nation to fulfill its promise of equality and opportunity. Not since the Civil War and Reconstruction had so many citizens demanded so clearly the full implementation of equal rights before the law. At the same time, technological innovation was revolutionizing both the agricultural and manufacturing sectors of North Carolina's economy. Automation in the textile and tobacco industries and the mechanization of agriculture meant that employers' profits no longer depended so heavily on access to a large pool of unskilled labor. Displaced by these processes, thousands of men and women lacked steady employment, and many were migrating out of the state. …

DENNIS E. LOGUE [*] JAMES K. SEWARD [**] I INTRODUCTION In 1996, the McKinsey Global Institute released a study posing the following question: If savings rates in Germany and Japan have been so high for a long time relative to those in the United States, why have their per capita gross domestic products (GDP) not grown to be much greater than that of the United States? [1] Surprisingly, the answer is that capital productivity in the United States has been significantly greater than capital productivity in Germany and Japan. Indeed, over the period of 1974 to 1993, the study found that the real after-tax rate of return to all investment in the corporate sector averaged 9.1% per annum in the United States, but only 7.4% per annum in Germany and 7.1% per annum in Japan. [2] Capital has been invested much more efficiently in the United States than in Germany or Japan. More detailed analysis indicates that there is much over investment in Germany and Japan and, hence, unutilized capacity. In particular, Germany has witnessed much gold-plating of capital investment, that is, the installation of equipment that is much better - and more expensive - than is required. [3] Moreover, there has been no offsetting improvement in labor productivity. Consequently, despite heavy investment, living standards have not improved significantly in Germany or Japan relative to those in the United States. Why is there inefficient investment in Germany and Japan? It is not caused by lack of investment tools because managers in both countries have access to the same tools that U.S. managers use to identify productive investments and to operate them efficiently. The over-investment must be caused by German and Japanese managers' decisions leading to excessive investment relative to the standards of economic efficiency. This article suggests that there is inefficiency by design, induced by the goals and systems of corporate governance in these countries. An article in this volume by Bradley et al. provides some theoretical insight into this issue. [4] The authors categorize corporate governance systems as either or communitarian. At the risk of oversimplification, a contractarian system encourages firms to focus on shareholder value. A communitarian system, in contrast, responds to all stakeholders: creditors, employees, customers, and communities where corporate operations are located and, finally, stockholders. The concern for a much broader constituency may lead to over-investment, often to the detriment of shareholders. Over-investment helps creditors, particularly when firms diversify because of co-insurance effects, and it helps employees because diversifying investment creates jobs and improves job security. Furthermore, it aids customers by creating more consumer choice, and it helps the community by broadening the tax base. Approaching the governance question from another perspective, La Porta et al. find that countries without common law traditions and strong shareholder protections do not have well-developed external capital markets. [5] Not only does this mean that companies must look to the banking sector for financing, but it also means that neither activist shareholders nor the market is imposing much external discipline on companies for corporate control. The result is that banks control corporate financing and investment decisions, and, in their positions primarily as lenders and secondarily as equity holders, they encourage corporations to invest up to inefficient levels so long as credit quality remains sufficiently high. Though many scholars believe the two systems of corporate governance -- contractarian and communitarian -- can co-exist in a globally competitive world, [6] Bradley et al. argue otherwise. [7] They contend that the forces of globalization and worldwide competition for capital will eventually force corporations -- and the countries in which they are domiciled -- to shift to the contractarian paradigm to set corporate goals and implement governance systems. …