Neal Kumar Katyal

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 Houses 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 governments 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.

Waging War, Deciding Guilt: Trying the Military Tribunals

A time of terror may not be the ideal moment to trifle with the most time-tested postulates of government under law. It is certainly not a good time to dispense lightly with bedrock principles of our constitutional system. Central among those principles is that great power must be held in check and that the body that defines what conduct to outlaw, the body that prosecutes violators, and the body that adjudicates guilt and dispenses punishment should be three distinct entities. To fuse those three functions under one mans ultimate rule, and to administer the resulting simulacrum

Judges as Advicegivers

Since Bickel, the Court has been understood as having a threefold power: striking down acts for unconstitutionality, legitimating them, or employing the passive virtues. This Article contends that there is a fourth power for courts, called advicegiving. Advicegiving occurs when judges recommend, but do not mandate, a particular course of action based on a concern for rule or principle. Courts have been giving advice, unconsciously at times, consciously at others, and this Article reveals some of these instances and seeks to provide a normative justification for the practice. The Article breaks down advicegiving into several categories, and explains how advice, when given to the political branches, can engender a colloquy that maximizes respect for coordinate branches, while also serving goals of federalism, enhancing political accountability, and encouraging judicial honesty. The Article begins with a historical discussion of advicegiving, centering largely on the Founding. It then goes through four main examples from the 1996 Supreme Court Term, and contrasts those cases with several others. In each of the four cases, I criticize the majority for ignoring the model, and use the case to show how advicegiving could have enhanced structural fidelity and governmental functioning. In Clinton v. Jones, I argue that the Court should have asked Congress for a clear statement about the meaning of the relevant statutes. In the right-to-die case Quill v. Vacco, I argue that before stepping into the controversy on its own, the Court should have asked the New York state courts to resolve the thorny questions about the meaning and reach of the state statute. By seeking a state court determination, the Court could have planted the seeds of a productive federal-state conversation about the state statute. In the death penalty case Gray v. Netherland, I show how federal courts can single out particularly egregious death penalty cases and call on governors to review them for commutation. This strategy is particularly appropriate when procedural bars are lurking in the case; a court opinion can explain those procedural bars, thus preventing state officials from hiding behind the imprimatur of a courts decision not to interfere with an execution. In the last case, United States v. Printz, I explain why courts that strike down legislation should provide blueprints of constitutional methods to achieve the same policy goals. Each of these cases illustrates a separate type of advicegiving, and reveals some of the virtues of the model. The Article concludes by considering some of the objections to advicegiving, and explains why advicegiving is a viable alternative to the Courts other powers in appropriate cases.

Legislative Constitutional Interpretation

This is an Essay about “the how” of constitutional interpretation. Much attention has been devoted to the question of how the Constitution is interpreted in courts. Rather little attention has been devoted to the question of how the Constitution is interpreted elsewhere in the government. The Constitution tells us that Congress, the President, and state legislators and courts must adhere to its terms, but it does not tell us how much interpretive power each actor should have, nor does it prescribe rules for each actor to use when interpreting the text. I argue that constitutional interpretation by Congress is, and should be, quite different from constitutional interpretation by courts. In so doing, I combine insights from political scientists about the ways Congress operates with insights from constitutionalists who fear open-ended interpretation. Congressional interpretation is a recurring problem in constitutional law. In the last four years, momentous events have forced us to rethink how Congress should approach the task. In 1997, the Supreme Court struck down the Religious Freedom Restoration Act (RFRA) on the ground that Congress could not expand constitutional rights through ordinary legislation. The next year, Congress was required to make a judgment about the meaning of the phrase “high Crimes and Misdemeanors” in President Clinton’s impeachment trial. Last year,

Disregarding Foreign Relations Law

What deference is due the executive in foreign relations? Given the considerable constitutional authority and institutional virtues of the executive in this realm, some judicial deference is almost certainly appropriate. Indeed, courts currently defer to the executive in a large number of cases. Professors Eric Posner and Cass Sunstein nevertheless call for a dramatic expansion in the deference courts accord executive interpretations of law in the foreign-affairs context. They maintain that courts should presumptively give Chevron-syle deference to executive interpretations of foreign relations law - even if the executive interpretation is articulated only as a litigation position and even if it violates international law. In our view, substantial deference to the executive is singularly inappropriate in a large swath of cases eligible for Chevron deference in their proposal - namely, foreign relations law that operates in what we call the executive constraining zone. Courts have scrutinized, and should continue to scrutinize, executive interpretation of international law that has the status of supreme federal law, is made at least in part outside the executive, and conditions the exercise of executive power. Failure to do so would undermine the rule of law in the foreign relations context. It would also dramatically increase the power of the president in ways that would: subvert the nations interests, discourage the executive from developing important internal checks on presidential power, and lead to less congressional regulation of the executive. In short, we maintain that deference at some point invites disregard; and law-interpreting authority at some point effectively constitutes law-breaking authority.