Shanske on Tiebout, Politics, and Local Public Goods

Darien Shanske has posted an article to SSRN called, "The Tiebout Model and the Role of Political Choice in the Production of Local Public Goods." Here is the abstract:
This paper addresses the central normative justification for the current local government landscape. This justification is economic and consists of the argument that competition among a multitude of local government entities is efficient. This vision of jurisdictional competition is generally known as the Tiebout model of local government. Much of the debate about the Tiebout model has centered on whether it correctly describes reality (e.g., are there enough jurisdictions for meaningful competition?) and on whether it would be desirable if it did do so (e.g., jurisdictional competition by necessity creates "losing" jurisdictions - is this an acceptable way to organize our local politics?). As an initial matter, I observe in this paper that constitutional law at the federal level has played a central role in enabling Tiebout-type jurisdictional competition. The Supreme Court's most recent contribution to the Tiebout model was its decision on intra-district desegregation plans last term in Parents Involved. This decision makes it much more difficult for local governments to directly mitigate long-terms patterns of residential segregation, but for the same reason helps the Tiebout model by allowing individuals to buy into the type of neighborhood they want without fear of later meddling by local governments. Justice Kennedy's controlling concurrence in Parents Involved claims that school districts may still try to combat residential segregation through "strategic site selection of new schools." He does not explain how school districts are to do this. This paper suggests some mechanisms that might be used. This paper makes a series of contributions to the discussion of the Tiebout model. First I argue that, despite arguments by proponents of the Tiebout model to the contrary, a full-blown Tiebout model does not release governments at various levels, nor citizens, from making political choices about a just (versus merely efficient) distribution of resources. This is primarily because the legal background rules set the terms of the competition and can select for different equally efficient sets of jurisdictions (at least from a pragmatic perspective). From this result it follows that these legal background rules ought to be interrogated as making political choices. A particular type of rule is described in this paper as a "bundling rule." A bundling rule operates, for instance, by making a certain method of financing schools readily available only to new subdivisions, thus bundling new schools with new development. By opting to make such a method available, state governments are in effect choosing to encourage certain (rather dubious) patterns of development. There has not been adequate discussion of the power of bundling rules to shape the governmental and development landscape. Considering the impact of these state and local rules, diffuse and obscure as they may be, is especially important because, among other reasons, so much federal law as regards these issues has not only been settled, but settled in a way that embraces the Tiebout model.

An earlier version of this article was the basis for Darien's job talk. Here is the link: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1243818

Shanske on Aristotle's Doctrine of Equity

Darien Shanske has just published an article called, "Revitalizing Aristotle's Doctrine of Equity," 4 Law, Culture & the Humanities 352 (2008). Here is the abstract:

This article argues for the contemporary relevance of Aristotle's doctrine of equity. Too often, similar arguments make this doctrine relevant by abstracting from the details of Aristotle's position or, conversely, fixating on details without due consideration of the epochal gap that separates us from Aristotle. After an initial survey of these limited approaches, the article proceeds to a more adequate account of Aristotle's doctrine of equity with the help of Heidegger. In particular, what Heidegger offers is a nuanced argument as to why Aristotle's manifest absorption in the concrete details of his face-to-face society is not a limitation to his doctrine, but a strength. We, no less than Aristotle, are enmeshed in logos, in a background ordering not at the command of our will, but we have a greater difficulty seeing this. Thus, where equity for Aristotle above all required expert engagement with logos, equity bids us first to acknowledge that the logos is.

Shockingly, this journal does NOT provide reprints and will not allow a post to SSRN for one year! But fear not, this blog is committed to providing the link to the SSRN post when it becomes available, if your Aristotle needs can wait that long!

Katyal on Property

Sonia Katyal has posted to SSRN an article (co-authored by Kristen Carpenter and Angela Riley) called "In Defense of Property." Here's the link: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1220665. The article has been accepted for publication in the Yale Law Journal.

Although Sonia is not on the Hastings faculty, she did substantial work on this article while a Traynor visiting professor over the summer!

Marcus on Dispersion and Consolidation of Litigation

Rick Marcus has published an article entitled, Cure-All for an Era of Dispersed Litigation? Toward a Maximalist Use of the Multidistrict Litigation Panel's Transfer Power, 82 Tulane L. Rev. 2245 (2008) (symposium on multidistrict litigation)(available from HeinOnline). Here is the abstract:

Since World War II, the American economy has coalesced so that mass production and distribution account for a much larger proportion of the goods and services Americans receive. During the same period, various legal theories -- particularly products liability and consumer rights -- have broadened the grounds on which producers of goods or services could be sued. Together, these developments have led to increasingly frequent dispersed litigation. During the same period, the Judicial Panel on Multidistrict Litigation has repeatedly used its transfer authority to combine dispersed cases raising common issues, often leading to combined resolutions or settlements of such litigation. This Article reviews the evolution and orientation of the Panel's consolidation activities against the background of modern procedure's preference for expansive combination of related claims and break from traditional procedure's "minimalist" attitude toward litigation combination. It explores the extent to which the Panel has adopted a "maximalist" attitude toward such combination and identifies some prudential concerns about pushing further toward a maximalist attitude.

Weithorn on the Problems of Applying Atkins v. Virginia

Lois Weithorn has published an article identifying some of the conceptual challenges in applying the U.S. Supreme Court's 2002 decision in Atkins v. Virginia, which held that execution of the mentally retarded violates the Cruel and Unusual Punishments clause of the Eighth Amendment. Lois concludes that "for some defendants -- particularly those viewed as 'mildly mentally retarded' -- summary scores on traditional measures of intellectual and adaptive functioning will not constitute the most meaningful and relevant evidence of intellectual disability for the purpose of death-penalty exclusion." She argues that, "given the limitations of existing measurement instruments . . . state policies should err on the side of casting a net that is too wide rather than one that is too narrow in defining 'mental retardation' for the purpose of Atkins compliance." The article is at 59 Hastings L. J. 1203 (2008) (symposium on forensic science).

Leib Guest Blogging with New York Times

Ethan Leib is guest-writing for the New York Times "Freakonomics Blog" this week. Here is the link to his first post, regarding California's use of his work on friendship and the law: http://freakonomics.blogs.nytimes.com/2008/08/11/friendship-and-the-law-a-guest-post/.

Park on Signature Identification Evidence

Roger Park has published an article called "Signature Identification in the Light of Science and Experience," 59 Hastings L. J. 1101 (symposium on scientific evidence). Roger carefully analyzes the empirical studies on signature identification and concludes that expert witnesses on forensic document examination should be permitted to testify in signature authentication cases. However, he strongly advocates numerous safeguards, including "instructions that the expertise is not scientific, restrictions on the use of scientific jargon or science-invoking words such as 'laboratory,' and full discovery of detailed conclusions." Furthermore, Roger argues that, when such forensic document experts testify, witnesses with knowledge of the scientific method should be allowed to testify on the other side, questioning scientific status, proficiency, or the validity of conclusions.

Keitner on Accomplice Liability in Alien Tort Statute Cases

Chimene Keitner has now posted to SSRN her article titled, "Conceptualizing Complicity in Alien Tort Cases," which will appear in Volume 60 of the Hastings Law Journal. Here is the abstract:
The Alien Tort Statute (ATS) indisputably brings international law into U.S. courts. The question is: How much international law? The U.S. Supreme Court was recently precluded from addressing this question in cases involving alleged corporate complicity in the crime of apartheid because four judges recused themselves, leaving the court without a quorum. The answer to this question can determine the outcome of cases brought against corporations for alleged complicity in international law violations by foreign governments. It will also shape the extent to which U.S. courts in ATS cases continue to interpret and apply international law, thereby contributing to the development and enforcement of international law standards. This Article provides an analytic roadmap for courts confronting accomplice liability claims in ATS cases. Part I concludes that U.S. courts should look to international law on accomplice liability, rather than federal common law. Part II examines international law doctrine on accomplice liability and concludes that the Second Circuit in the South African apartheid cases misstated the applicable standard, which prohibits knowingly providing assistance that has a substantial effect on the commission of the wrongful act. Part III considers the implications of this doctrinal analysis for broader concerns about the indeterminacy of international law and notions of international comity. By applying well-established international law to defendants' conduct, U.S. courts can provide domestic remedies for international wrongs while avoiding criticisms of illegitimately applying U.S. substantive law outside U.S. territory.

Here is the link: http://ssrn.com/abstract=1158806

Mart on the Patriot Act, Post-Reauthorization

Susan Nevelow Mart has posted an article to SSRN titled, "The Chains of the Constitution and Legal Process in the Library: A Post-Patriot Reauthorization Act Assessment." Here is the abstract:

Since the Patriot Act was passed in 2001, controversy has raged over nearly every provision. The controversy has been particularly intense over provisions that affect the patrons of libraries. This article follows those Patriot Act provisions that affect libraries, and reviews how they have been interpreted, how the Patriot Reauthorization Acts have changed them, and what government audits and court affidavits reveal about the use and misuse of the Patriot Act. The efforts of librarians and others opposed to the Patriot Act have had an effect, both legislatively and judicially, in changing and challenging the Patriot Act. Because libraries are such a potent symbol of democratic openness, the effect of the Patriot Act on libraries has acted in the public mind as a microcosm of the broader problems with the implementation of the Patriot Act. The publics discomfort with the civil liberties implications of the Patriot Act has turned out to be justified, as every agency that has reviewed the implementation of the Patriot Act has concluded that the government has not been able to maintain an appropriate balance between the need to protect civil liberties and the need to prevent terrorist acts. The government's list of domestic terrorist acts that have been prevented or punished is not inspiring: the entire panoply of tools authorized by the Patriot Act has not done much more than stop some home-grown right wing fringe groups and eco-terrorists. In light of the evidence of abuse of civil liberties and the questionable constitutionality of many of the Patriot Act's provisions, this paper suggests that the time for vigorous advocacy has not passed and that further legislative changes need to be made.

Here's the link: http://ssrn.com/abstract=1105448

Roht-Arriaza on Transnational Prosecutions in Guatemala

Naomi Roht-Arriaza has published an article chronicling efforts to prosecute leaders of the deposed Guatemalan regime for genocide and torture, among other things, with the help of Spanish legal process. The article is titled, "Making the State Do Justice: Transnational Prosecutions and International Support for Criminal Investigations in Post-Conflict Guatemala," 9 Chi. J. Int'l L. 79 (Summer 2008).

Naomi has also co-authored a chapter on Guatemala in a book called Victims Unsilenced, published in 2007 by the Due Process of Law Foundation. (It's in Spanish.) Here's the link: http://www.dplf.org/uploads/1202485080.pdf.

Leshy on Interstate Groundwater Resources

John Leshy has published an article titled, "Interstate Groundwater Resources: The Federal Role," 14 Hastings W-Nw J. Envtl. L. & Pol'y 1475 (2008), in which he tackles the hot topic of groundwater that crosses state lines. John cites the example of Las Vegas, which has maxed out its allotment of the Colorado River and is now planning to tap an aquifer that Nevada shares with Utah. Utah is not amused. Several other states are in similar fights over interstate groundwater. John also provides a grammar lesson: with respect to whether it's "groundwater" or "ground water," John agrees with the engineers that "ground water" is what you get when you put ice in a blender.

Bisharat on Obama's Jerusalem Promise

George Bisharat published an op-ed in the June 17, 2008, San Francisco Chronicle titled, "Obama's Missteps." George criticizes Obama for his promise, made before the American Israeli Public Affairs Committee, that Jerusalem must remain the "capital of Israel" and must "remain undivided."

Keitner on Boumediene

Chimene Keitner has been invited to participate in an online symposium on the Supreme Court's recent decision in Boumediene v. Bush. Here's the link: http://www.opiniojuris.org/posts/chain_1213336401.shtml. Chimene's first post observes that Justice Kennedy's opinion favors function over form and is limited to territories over which the United States has "de facto sovereignty."

Marcus on Procedural Reform

Rick Marcus has published two pieces on procedural reform. The most recent is called "Modes of Procedural Reform," 31 Hastings Int. & Comp. Law Rev. 157 (2008)(available from HeinOnline). Rick offers a typology of reform modes (e.g., judicially-driven, legislative, expert-driven, borrwed from abroad, top-down vs. bottom-up). He then examines the actual history of American procedural reform and concludes that the particular mode of reform employed has had less than a profound effect on success. In the end, after looking at other countries' experiences with procedural reform as well, Rick suggests we may be left with a "grab bag" of factors determining prospects for success.

The other piece is called "Confessions of a Federal 'Bureaucrat': The Possibilities of Perfecting Procedural Reform," 35 Western State Univ. L. Rev. 103 (2007)(available from HeinOnline). This piece comments on a paper by Glenn Koppel in which Koppel argues that the "Golden Age" of federal procedural rulemaking is over, and that a multistate apparatus ought to be created to develop new procedures in state courts. Rick doubts the plausibility of this proposal and further suggests that federal rulemaking may still have some utility -- as is illustrated by the states having largely followed the federal lead on E-discovery.

Bisharat on Presidential Politics and Israel

George Bisharat has published an op-ed in the June 12 Houston Chronicle titled, "Where's Healthy Debate on U.S. Policy Toward Israel?" in which he criticizes both John McCain and Barack Obama for what he sees as "pandering" to the pro-Israel lobby.