Tuesday, December 18, 2007
Tuesday, December 4, 2007
Tuesday, November 20, 2007
John McGinnis and Michael Rappaport have made multiple contributions over the last decade to many important legal and political debates with their careful attention to the design and desirability of supermajoritarian rules in our practices of self-government. But they have gone too far. In "A Pragmatic Defense of Originalism," they seek to explain why supermajoritarianism furnishes a new pragmatic defense of originalism. This most recent piece of their project simply does not work. In this Essay, I dispute each of their substantive claims. First, I argue that there is nothing newly pragmatic about their defense. Second, I argue that there is no reason to believe that constitutional entrenchments produced under supermajoritarian decision rules are any more desirable as a general matter than rules produced under other, more relaxed, decision rules. And, finally, I argue that nothing about provisions subject to supermajoritarian agreement justifies, without more substantial argument, an originalist interpretative regime. In the final analysis, supermajoritarianism notwithstanding, we are left to debate the merits of originalism on the same terms as before McGinnis and Rappaport's current intervention. It may very well be that our Constitution is a great and desirable document, but nothing about its supermajoritarian genesis necessarily makes it so or requires us to follow only its original meaning.
Here is the link: http://www.law.northwestern.edu/lawreview/v101/n4/1905/LR101n4Leib.pdf
Wednesday, November 7, 2007
The first two terms of Franklin Roosevelt's presidency (1933-1941) were periods of great administrative innovation. Responding to the Great Depression, Congress created scores of new administrative agencies charged with overseeing economic policy and implementing novel social welfare programs. The story of the constitutional difficulties that some of these policy innovations encountered is a staple of both New Deal historiography and the constitutional history of twentieth-century America. There has been very little writing, however, about how courts and the New Deal-era administrative state interacted after these constitutional battles ended. Having overcome constitutional hurdles, these administrative agencies still had to interact with the judiciary in their day-to-day operations. This Article examines this interaction. In particular, it shows how Roosevelt's appointees to the federal bench changed administrative law so as to dramatically diminish the role of the judiciary in the administrative process. The New Dealers espoused what I will call a "prescriptive" vision of policymaking in which expert administrators implemented the policy desires that emerged from the democratic process. There was little room for courts in this vision of policymaking. This era of judicial passivity was short lived, but it firmly defined the role of expertise in the administrative state and created the model of judicial deference that would be both emulated and reacted against as administrative law developed during the rest of the twentieth century.
Professor Keitner addresses the growing debate over the use of foreign and international law sources by U.S. judges engaged in constitutional adjudication. She begins by summarizing the attitudes towards international law sources exhibited by individual justices in the American legal system, noting that "one's opinion about the potential relevance of foreign and international law sources . . . depends in no small part on one's view of the role of judges in a constitutional democracy." Professor Keitner then examines the public opposition to the citation of foreign law sources in Lawrence v. Texas and Roper v. Simmons, which manifested itself in proposed legislation that would constrain how judges could interpret cases and prohibit the consideration of international law sources. Finally, Professor Keitner identifies three principled objections to the use of foreign and international law sources in constitutional adjudication (categorizing them as as institutionalist, instrumentalist, and inherentist objections), and responds to each in turn. Professor Keitner concludes, "Participating in international judicial dialogue should be viewed as a means of strengthening, not weakening, our commitment to the democratic values embodied in the U.S. Constitution."
Sunday, October 21, 2007
In 1989, Lawrence M. Friedman published Law, Lawyers and Popular Culture. Based in part on James Willard Hurst’s idea that markets create a social aggregate of behavior that shapes law, Friedman’s article offered one of the earliest arguments for the use of popular culture as a source of material for the study of law. According to Friedman, popular legal culture (a social aggregate of opinion about law) was both shaped by law and had the power to shape law. Thus, legal culture (opinions people hold about law), popular culture (mass generated opinions, norms and values held by people), and popular legal culture (mass generated opinions, norms, and values about law and lawyers)—because they represented public opinion—could provide a rich trove of information about how law is regarded by consumers of the legal system. But, Friedman warned, accessing this information required more than just a claim of influence; it required a social theory. To that end, Friedman proposed a three-pronged social theory for the study of law and popular culture. His theory turned on three ideas: (1) explanations about law exist both inside and outside the legal system; (2) boundaries of law are porous and permeable to exchanged information; and (3) law is a dependent variable in a greater social system of other dependent variables. This paper considers Friedman’s social theory and places it into a broader context of scholarship on the same topic.
Tuesday, October 16, 2007
Monday, October 15, 2007
Professor Kennedy is a prolific and controversial scholar in the field of international law, and his new book published by Princeton University Press argues for a radically neo-realist approach to the laws of war.
Professor Kennedy's research uses interdisciplinary materials from sociology and social theory, economics and history to explore issues of global governance, development policy and the nature of professional expertise. He is particularly interested in the politics of the transnational regime for economic policy making. Kennedy has been particularly committed to developing new voices from the third world and among women in international affairs.
Prof. Kennedy served as Chair of the Graduate Committee and Faculty Director of Graduate and International Legal Studies from 1991-1997. He has advised a number of educational institutions on their law and graduate programs, including Brown University, the University of Quebec Lavalle and the Monterey Institute of International Studies. Professor Kennedy has lectured at numerous universities and institutes, and has been a Visiting Professor at New York University in 1999, at the University of Paris (X) in 1995-1998, 2001-2002, and 2005-2006; at the University of Toronto in 1998 and 1999 and at the University of Paris (II) in the spring of 1998. He was a Visiting Scholar at the School of Oriental and African Studies, University of London 2000-2001.
Professor Kennedy is the author of a number of books, including "The Canon of American Jurisprudence." He was just named Vice-President of Brown University in charge of their International Programs. He will leave Harvard in January for his new post.
There will be a book signing and a reception following Professor Kennedy's lecture.
Friday, October 12, 2007
The tax consequences of substantively equivalent partnership mergers, divisions and incorporations can vary dramatically depending on the form of the transaction. This disparate treatment arises because the tax analysis of these partnership transactions inconsistently adheres to the “form” of the transaction and limits the use of legal “fictions.” This part-form, part-fiction approach distorts parties’ incentives about whether and how to undertake such transactions and can make the transactions less efficient, all without materially advancing other policy goals. This result is exacerbated by non-tax business exigencies that restrict parties’ abilities to implement certain transaction forms and by the increase in “formless” transactions. In order to treat substantively equivalent transactions similarly, this Article proposes the adoption of a uniform regime in which the tax consequences of partnership mergers, divisions, and incorporations are determined based on one of three legal fictions elected by the parties, regardless of the form in which the transaction is implemented. The proposed approach not only remedies the problem of disparate treatment and addresses the policy concerns raised by the existing part-form, part-fiction regime, but also rationalizes the use of form and fiction in the tax analysis of substantively equivalent partnership transactions.
Here is the link: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1020735
Friday, October 5, 2007
Thursday, September 27, 2007
This Article aims to show what the political, rather than the technical stakes, are in the current debate over the harmonization of private law in Europe. Part One analyzes the main actors, the legal sources, the ideological divide, and the process animating the current debate on European private law. It sheds light on the incremental transformation of European private law in a scholarly industry. Part Two sheds light on the main obstacles and inconsistencies that jurists encounter in envisioning a Social private law. This section argues that the notion of the "Social" in private law scholarship as well as the idea of "Social Europe" is rarely a useful notion to articulate a progressive agenda for European private law. We argue that a progressive agenda for European private law can be conceived today as a significant platform only by breaking with the current hegemonies and ideologies, as well as by unveiling the transformation of European private law into a scholarly industry.
The cite is 41 New England L. Rev. 1 (2006) (but just off the press).
Those focused on the questions surrounding how courts ought to interpret the statutory products of direct democracy pay relatively little attention to the variety of processes that could give rise to such laws. There are two core processes of direct democracy that produce statutes, though the specific mechanics vary in the manystates that employ them: the referendum and the initiative. Generally speaking, the referendum enables citizens to ratify or reject statutes passed by a legislature, while the initiative enables citizens to draft laws themselves and put them before the populace for a vote. My focus here is the question of the appropriate interpretive approach for statutes subject to the popular vote. By and large, scholars have focused almost exclusively on the direct initiative when they discuss how courts should interpret the products of direct democracy. But courts are saddled with the task of interpreting a broader array of statutory enactments subject to direct democracy. A uniform method of interpretation - one that finds support in many judicial pronouncements - might be defended on the ground that it makes no difference which directly democratic process leads to a law under consideration; irrespective of process, the interpretive inquiry should remain constant. That uniform method could be supported by an assumption that the processes of direct democracy are similar enough to warrant similar treatment for purposes of interpretation. Or it could be supported by an assumption that all forms of direct democracy are underwritten by a political theory that counsels for similar statutory interpretation. I argue here that the uniform method, whatever support it might find in caselaw, is flawed.
Here is the link to the download: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1017062
Tuesday, September 18, 2007
Friday, August 31, 2007
In this age of renewed interest in comparative constitutionalism and more focused attention on the legal regimes of foreign democracies, it is astonishingly difficult to learn about other countries' jury systems. There is no central, short, and easily-accessible English source to which scholars and policymakers interested in how the criminal jury functions worldwide can turn for basic facts about the jury systems in use in democratic countries. This paper hopes to fill that gap in part by furnishing jury system information about the twenty-eight democracies (excluding the United States) that have been consistently democratic since at least the early 1990s and have a population of five million or more (with allowance for Mexico and South Africa).
Here is the link: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1010692
Here's the link: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=971043
Monday, August 27, 2007
The controversy over the Bush Administration's warrantless wiretapping program will not disappear any time soon. Legislators, policymakers, and academics should be thinking about whether and under what circumstances such surveillance should be illegal. A major factor in that decision is the moral status of such wiretapping. This essay, written for a symposium on moral rights to informational privacy, argues that two key determinants in the morality of warrantless wiretapping are (1) whether the subjects of the surveillance are known terrorists; and (2) whether the wiretapping is part of a pre-emptive surveillance program, or instead whether government operatives actually know of concrete facts indicating that warrantless wiretapping is necessary on the present occasion to save innocent lives. Although the secrecy of the Bush Administration program's precise application prevents definitive moral evaluation, it seems likely that significant aspects of the program have violated moral rights.
Here is the link: http://ssrn.com/abstract=1002723
Saturday, August 25, 2007
Monday, Aug. 20, 12:40-1:30: Jules Lobel, Professor, University of Pittsburgh
Wednesday, Aug. 29, 12:40-1:30: David Faigman, Distinguished Professor
Wednesday, Sept. 5, 12:40-1:30: Beth Hillman, Visiting Professor (Rutgers, Camden)
Monday, Sept. 10, 3:40-4:30: Joel Paul, Professor of Law
Wednesday, Sept. 19, 12:40-1:30: William Dodge, Professor of Law
Monday, Sept. 24, 12:40-1:30: Scott Sundby, Sydney and Frances Lewis Professor of Law, Washington & Lee
Wednesday, Oct. 3, 12:40-1:30: Aaron Rappaport, Professor of Law
Tuesday, Oct. 9, 12:40-1:30: Paul Carrington, Professor and former Dean, Duke Law School
Wednesday, Oct. 17, 12:40-1:30: Chimene Keitner, Associate Professor
Monday, Nov. 26, 3:40-4:30: Adam Scales, Visiting Professor (Washington & Lee)
Friday, August 24, 2007
The Supreme Court has limited congressional power to enforce the Fourteenth Amendment to remedial actions, but has acknowledged that prevention of constitutional injuries is remedial. To control the boundaries of this remedial power, the Court limits Congress to regulations that are congruent with the identified constitutional wrong it seeks to prevent and proportional to the extent of that injury. The meaning of congruence and proportionality has been fleshed out almost entirely in the context of congressional attempts to abrogate state sovereign immunity. In that context, those terms require evidence that states have been engaged in a pattern of unconstitutional behavior and that the prohibited state behavior is closely connected to the constitutional wrong. In practice, the Court requires less evidence and permits a looser fit between the remedy and the wrong when the prohibited state behavior is presumed to be unconstitutional. The Court has intimated that Congress may have even greater freedom to prevent constitutional injury when abrogation of state sovereign immunity is not at issue. If this is so, the meaning of congruence and proportionality must differ from the abrogation context. The central concern of abrogation of state sovereign immunity is protection of the sovereignty of the states and autonomous state governance by preservation of the public fisc. Those concerns become of lesser importance when abrogation is not at issue, and federalism issues become of much greater significance. The principal federalism issue is interpreting the enforcement power in such a way that Congress is unable to use it as a general police power. Courts should defer to congressional judgments about the scope of the enforcement power when, in a non-abrogation context, a significant portion of the state conduct it regulates materially interferes with an inchoate constitutional right. For this purpose, an inchoate constitutional right is either (1) a claimed right that has yet to be recognized by the Supreme Court as deserving of any form of heightened judicial scrutiny, but which has been widely and repeatedly treated as a plausible constitutional right by multiple sources within our constitutional culture, including decisions of state and lower federal courts, repeated dicta in opinions of the Supreme Court, legislative debate, learned commentary, and popular opinion, or (2) a legislative application of an existing judicially recognized right that has not yet been determined by the Court to be within or without the existing right, but which Congress has found, by adequate evidence, to be within the existing judicially recognized right. Such a standard, while inherently loose, would allow Congress wide latitude to prevent constitutional injuries, even when the conduct Congress regulates is presumptively in compliance with the Fourteenth Amendment, but would not permit Congress to assume a general police power. This standard is consistent with the underlying rationale of City of Boerne v. Flores, which recognized the prophylactic aspect of the enforcement power, even as it repudiated the extremely deferential McCulloch-derived test of Katzenbach v. Morgan, which permitted Congress independently to define the content of the constitutional rights it chooses to enforce. Congressional ability to identify and enforce constitutional rights before their recognition as such by the judiciary would be bounded by judicial, legislative, academic, and popular voices in the constitutional culture, and would be subject to judicial control to ensure that nascent constitutional rights recognized by Congress actually have a strong impetus for recognition within our constitutional culture.
Here is the link: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1009741
The purpose of governmental action is sometimes highly relevant to judicial determination of its constitutional validity, and sometimes completely irrelevant. Why? Even when purpose is relevant, the method of ascertaining purpose is highly variable. Why? When should governmental purpose be relevant to assessment of the constitutional validity of its action? What method should courts use to determine purpose? This article grapples with these questions by first distinguishing between purpose and motive, a distinction that the Supreme Court frequently elides, then examining what the Court has done, and proposing what the Court should do. The Court's consideration of purpose is unguided by any discernible principle, although the stringency of the applicable level of review has some influence upon the relevance of purpose. The Court's method of determining purpose is equally unguided. Purpose is sometimes derived from statutory text, sometimes from the effects of the action, sometimes from hypothesis, and sometimes from inferences of motive, and these varying methods are largely untethered from the applicable level of review. Although purpose inquiry is necessary to tiered scrutiny the Court should focus primarily on the effects of government action. When the chosen means are ineffective to accomplish a forbidden purpose, courts should ignore purpose, except in cases of intangible stigmatic injury or when courts are incapable of assessing effectiveness. When the effects of government action are constitutionally suspicious but no forbidden purpose is evident, courts should liberally permit challengers to offer proof of an illegitimate purpose or motive in order to sift effects that are unintended byproducts of lawful action from those that are produced by an occult bad purpose or motive. Facial challenges should always involve scrutiny of purpose, because the effects are generally speculative, either because such challenges are brought before implementation of the measure or it so squelches protected activity that as-applied challenges are unlikely to occur. Within minimal scrutiny, when the effect of governmental action is divorced from the government's stated or conceivable purposes, the action should be treated as irrational. Within heightened scrutiny courts should consider purpose with greater care, examining the face of the statute or its application for evidence of a forbidden purpose. Evidence of legislative motive should be used quite sparingly, if at all, due to the extreme difficulty of identifying a singular motive for the action of a deliberative body. This proposal implies that a number of areas of constitutional doctrine should be reconsidered or abandoned. Aspects of free expression, equal protection, substantive due process, and the religion clauses are called into question. The author hopes to spark debate on these matters, rather than offer the final word.
Here is the SSRN link: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1009223
Wednesday, August 22, 2007
Friday, August 17, 2007
This Article asks two basic questions: When does, and when should, the state use the criminal justice apparatus to accommodate family ties, responsibilities, and interests? We address these questions by first revealing a variety of laws that together form a string of family ties subsidies and benefits pervading the criminal justice system. Notwithstanding our recognition of the important role family plays in securing the conditions for human flourishing, we then explain the basis for erecting a Spartan presumption against these family ties subsidies and benefits within the criminal justice system. We delineate the scope and rationale for the presumption and under what circumstances it might be overcome. When the presumption is overcome, we urge distributing the benefit on terms that are neutral to family status, if possible, with a focus instead on functions served by established relationships of care-giving responsibility.
Here's the link: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=933427
Or, if you prefer to see it in published format: http://home.law.uiuc.edu/lrev/publications/2000s/2007/2007_4/index.html
Warning: Don't read this if you have a dental appointment any time soon!
Whether you agree or disagree, it's a conversation starter!
Thursday, August 16, 2007
Housing prices do not always go up, interest rates do not always stay down, borrowers cannot always refinance, and physical shelter can be lost for not making mortgage payments. Were our cars as dangerous as the new mortgage products on the market, we might all be injured or dead. Still, lenders claim that innovative lending products enhance consumer access to credit. They believe increased access to credit democratizes the housing market. And they insist - against a growing body of evidence - that option adjustable rate mortgages, though untested, are safe financial products.
But reality is setting in. Option ARMs can be dangerous to consumers, if not ruinous, in the perfect financial storm. When an option ARM product adjusts upward, what was once affordable can become unmanageably expensive. Imagine charging $331,200 - the median mortgage owed by buyers in default in California in April of 2007 - on an adjustable rate credit card charging 11% APR and rising. Now add your current credit card debt to that amount, and the ordinary expenses of living. For many consumers, the result is bankruptcy or rescission. Indeed, lawsuits are in the works as thousands upon thousands of consumers realize that the loan that lured them with promises of low monthly payments has left them even more mired in mortgage debt than before.
This article analyzes and places into market context three recent consumer class action lawsuits that were brought under Section 1635 of the federal Truth in Lending Act (TILA). TILA allows for class action lawsuits for damages under Section 1640, but TILA is silent on whether classwide rescission claims are permissible under Section 1635. On the legal side, whether a class seeking rescission can be certified will depend on how courts interpret Section 1635. On the economic side, it will depend on how access to credit issues are framed.