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Symposium: The Future Of Law And Development, Part Iii, Kevin Davis, Adam Feibelman, Brian Z. Tamanaha, Yuka Kaneko

NULR Online

I would like to take up Anna Gelpern’s invitation to define the study of Law and Development broadly and to reject the presumption that the inquiry will focus narrowly on the law-related projects of bilateral aid agencies and international organizations.

I am interested in the relationship between law on the one hand and, on the other hand, development (however defined), and it is not clear to me that externally directed “Law and Development” projects are always central to understanding that relationship. (Isn’t that a reasonable inference to draw from all of the studies that question the impact of those projects?) …

Symposium: The Future Of Law And Development, Part Ii, Mariana Prado, Susan D. Franck, John Cioffi

NULR Online

My comments will be mostly connected to Tom’s third question, relating to the future, and I would like to start by responding to Salil Mehra. I generally agree that there is an excessive focus on replicable “tools” and “best practices” in Law and Development studies, but I think there are a lot of questions to be asked regarding Mehra’s suggestion that the way forward involves addressing embedded cultural practices and institutions. In fact, there are currently a number of scholars (myself included) emphasizing the importance of looking at the interaction between so-called informal institutions (such as cultural practices, social norms, …

Thoughts On The Churn Law, Michael Halley

NULR Online

A grand alliance is forming, and new trenches are being dug on the old and hallowed battleground of the Constitution. Waving the stars and stripes of “constitutional design,” and richly equipping themselves with the weaponry of reason, scholars like Richard Fallon, Sanford Levinson, and Jack Balkin have taken the field to determine “what provisions for judicial review (if any) ought to exist in constitutions for all societies whose people and legislatures are seriously committed to respecting rights,” and to avoiding “constitutional crises” by “careful planning.” Fallon, a self-proclaimed “system-designer,” applauds himself for having “plowed rich ground.” Levinson and Balkin claim …

Why We Should Ignore The "Octomom", Kimberly D. Krawiec

NULR Online

Few familiar with the story of Nadya Suleman­­—a single, low-income, California mother of six who recently gave birth to octuplets conceived through in vitro fertilization (IVF)—do not instinctively react with outrage. Fourteen children (or even one) are a daunting number under the best of conditions, and the conditions surrounding the Suleman births are far from ideal. Yet, as the old saying goes, “hard facts make bad law,” and Suleman, dubbed “the Octomom” by the media, exemplifies the truth of this adage.

Suleman’s hard facts have led not only to bad regulatory reform proposals, but also to public fury and social …

Deference To Clients And Obedience To Law: The Ethics Of The Torture Lawyers (A Response To Professor Hatfield), W. Bradley Wendel

NULR Online

In the early months of the Obama administration, we are learning a great deal more about the previous administration’s program of using “enhanced interrogation techniques” on alleged al-Qaeda detainees. On April 16, 2009, the new administration released to the public several memos, prepared by lawyers at the Office of Legal Counsel (“OLC”) in the administration of George W. Bush, dealing with certain legal aspects of whether detainees in U.S. custody could lawfully be subjected to torture. I and many others have criticized the quality of legal reasoning in previously disclosed memos, and it is now conventional wisdom that something went …

Professionalizing Moral Engagement (A Response To Michael Hatfield), Robert K. Vischer

NULR Online

In Professionalizing Moral Deference, Michael Hatfield argues that the way we form lawyers “begins with moral desensitization,” a technique that teaches future lawyers “to override [their] moral intuition.” In making his case, Hatfield offers the infamous torture memos as Exhibit A, but they may not be the best vehicle for proving his thesis. As the work of John Yoo shows, some of the most scandalously deficient legal advice may stem (at least in part) from the lawyer’s inability or unwillingness to override his moral intuition. There is no reason to believe, however, that Yoo’s moral intuition would have led …

Imperfect Oaths, The Primed President, And An Abundance Of Constitutional Caution, Bruce Peabody

NULR Online

Presidential inaugurations frequently invite widespread civic celebration, the broad rhetoric of an incoming Chief Executive, and traditions stretching back for decades and even centuries. The inaugural ceremonies of January 20, 2009 offered all this and something more: a set of important constitutional puzzles radiating from Barack Obama’s imperfect recitation of his oath of office.

At 12:04 p.m., Mr. Obama attempted to fulfill the Constitution’s requirement that each President take a prescribed thirty-five word oath “[b]efore he enter on the Execution of his Office . . . .” During the recitation, Chief Justice John Roberts (who was administering the oath) prompted …

Eight Is Enough, Naomi R. Cahn, Jennifer R. Collins

NULR Online

No abstract provided.

Keeping The Label Out Of The Case, Pearson Bownas, Mark Herrmann

NULR Online

No abstract provided.

Choose The Best Answer: Organizing Climate Change Negotiation In The Obama Administration, Jonathan Zasloff

NULR Online

No abstract provided.

The Number Of States And The Economics Of American Federalism, Steven G. Calabresi, Nicholas K. Terrell

Faculty Working Papers

In 1789 it was possible to speak of a federation of distinct States joined together for their mutual advantage, but today it is rather the Nation that is divided into subnational units. What caused this shift in focus from the States to the Federal Government? Surely the transformation from a collection of thirteen historically separate States clustered along the Atlantic seaboard to a group of fifty States largely carved out of Federal territory has played a role. Building on previous analysis of the economics of federalism, this essay considers the dynamic effects of increasing the number of states on the …

Two Ways To Think About The Punishment Of Corporations, Albert Alschuler

Faculty Working Papers

This article compares the criminal punishment of corporations in the twenty-first century with two ancient legal practices—deodand (the punishment of animals and objects that have produced harm) and frankpledge (the punishment of all members of a group when one member of the group has avoided apprehension for a crime). It argues that corporate criminal punishment is a mistake but that viewing it as frankpledge is less ridiculous than viewing it as deodand. The article considers the implications of the choice between these concepts for standards of corporate guilt and for the sentencing of corporate offenders. After a brief historical description …

The Foreclosure Crisis And The Anti-Fragmentation Principle In State Property Law, David A. Dana

Faculty Working Papers

Secured credit in homes has been divided and over-divided and spun into so many separate interests that economically rational, socially beneficial modifications of loans are impossible. The mortgage story is a new one but the excessive fragmentation of property and the creation of waste and inefficiency is not new. And our legal tradition of state property law has an answer, in the form of an anti-fragmentation principle. Consistent with this principle, federal government trustees should be authorized to review mortgages and, where modification would yield greater total return than foreclosure, modify the loans. Blind trustee review, moreover, can be achieved …

Selection Neglect In Mutual Fund Advertisements, Jonathan Koehler, Molly Mercer

Faculty Working Papers

Mutual fund companies selectively advertise their better-performing funds. However, investors respond to advertised performance data as if those data were unselected (i.e., representative of the population). We identify the failure to discount selected or potentially selected data as selection neglect. We examine these phenomena in an archival study (Study 1) and two controlled experiments (Studies 2 and 3). Study 1 identifies selection bias in mutual fund advertising by showing that the median performance rank for advertised funds is between the 79th and 100th percentile. Study 2 finds that both novice investors and financial professionals fall victim to selection neglect in …

Foundational Competencies: Innovation In Legal Education, David E. Van Zandt

Faculty Working Papers

Spurred by a rapidly changing legal environment and a desire to differentiate and maximize the success of our graduates, Northwestern Law recently completed a major strategic planning initiative resulting in a revolutionary report entitled Plan 2008: Preparing Great Leaders for the Changing World. Plan 2008 is the most recent installment of a long-term process to enhance our student quality and programs. The new initiatives build upon a strategic plan that we have been refining since its implementation in 1998. Under the prior plan, we introduced the evaluative admissions interview and work-experience policy for applicants.1 We also added a number of …

The New Poor At Our Gates: Global Justice Implications For International Trade And Tax Law, Ilan Benshalom

Faculty Working Papers

The Article explains why international trade and tax arrangements should advance global wealth redistribution in a world of enhanced economic integration. Despite the indisputable importance of global poverty and inequality, contemporary political philosophy stagnates over the controversy of whether distributive justice obligations should extend beyond the political framework of the nation state. This stagnation results from the difficulty of reconciling liberal impartiality with notions of state sovereignty and accountability. The Article offers an alternative approach that bypasses the controversy of the current debate. It argues that international trade results in relational distributive duties when domestic parties engage in transactions with …

The European Court’S Political Power Across Time And Space, Karen Alter

Faculty Working Papers

This article extracts from Alter's larger body of work insights on how the political and social context shapes the ECJ's political power and influence. Part I considers how the political context facilitated the constitutionalization of the European legal system. Part II considers how the political context helps determine where and when the current ECJ influences European politics. Part III draws lessons from the ECJ's experience, speculating on how the European context in specific allowed the ECJ to become such an exceptional international court. Part IV lays out a research agenda to investigate the larger question of how social support shapes …

The Death Of The American Trial, Robert P. Burns

Faculty Working Papers

This short essay is a summary of my assessment of the meaning of the "vanishing trial" phenomenon. It addresses the obvious question: "So what?" It first briefly reviews the evidence of the trial's decline. It then sets out the steps necessary to understand the political and social signficance of our vastly reducing the trial's importance among our modes of social ordering. The essay serves as the Introduction to a book, The Death of the American Trial, soon to be published by the University of Chicago Press.

Consumer Harm Acts? An Economic Analysis Of Private Actions Under State Consumer Protection Acts, Henry N. Butler, Jason S. Johnston

Faculty Working Papers

State Consumer Protection Acts (CPAs) were adopted in the 1960s and 1970s to protect consumers from unfair and deceptive practices that would not be redressed but for the existence of the acts. In this sense, CPAs were designed to fill existing gaps in market, legal and regulatory protections of consumers. CPAs were designed to solve two simple economic problems: 1) individual consumers often do not have the incentive or means to pursue individual claims against mass marketers who engage in unfair and deceptive practices; and, 2) because of the difficulty of establishing elements of either common law fraud or breach …

Religious Establishment And Autonomy, Andrew Koppelman

Faculty Working Papers

Kent Greenawalt claims that one rationale for nonestablishment of religion is personal autonomy. If, however, the law is barred from manipulating people in religious directions (and thus violating their autonomy), while it remains free to manipulate them in nonreligious directions (and thus violate their autonomy in exactly the same way), autonomy as such is not what is being protected. The most promising alternative is to understand religion as a distinctive human good that is being protected from government interference.

International Responses To Territorial Conquest, Eugene Kontorovich

Faculty Working Papers

The prohibition on territorial conquest is a cornerstone of the international legal order. The United Nations Charter bans the use of force as a tool of international relations, even when used to rectify prior injustices. Thus territory taken by force has the status of ill-gotten gains, and cannot be kept by the victor. An important corollary is that third-party states cannot recognize the sovereignty of the conqueror or otherwise treat the acquisition as lawful.

Despite the Charter, nations sometimes acquire or try to acquire territory through force. This paper, part of the proceedings of the American Society of International Law's …

Reforming Section 10 And The Habitat Conservation Plan Program, David A. Dana

Faculty Working Papers

This Chapter in a forthcoming book to be published by AEI (edited by Jonathan Adler) provides a framework for HCP reform. The Chapter first briefly reviews the history of HCP regulations and guidance, and what we know about HCPs in practice (which is limited). It offers a range of reforms to address problems in the current HCP approach, including requirements that the Services assemble a better database regarding current HCPs and report to Congress on the program periodically; greater reliance on programmatic regulations adopted after notice and comment; development of guidelines for assessing the likely or possible environmental impacts of …

When Less Liability May Mean More Precaution: The Case Of Nanotechnology, David A. Dana

Faculty Working Papers

The heart of the Article is an exploration of the possible role of common law tort liability in both encouraging and deterring voluntary, precautionary study of new products generally and nanotechnology products in particular. A key variable in considering liability's role as an incentive or deterrent to testing is the manufacturer's subjective assessment of the probability that any injuries from its product would be detected by the injured parties and successfully attributed to the product absent research by the manufacturer itself on the adverse effects of the product. Another key variable is the legal standard for tort liability, and specifically …

The Language Of Consent In Police Encounters, Janice Nadler, J.D. Trout

Faculty Working Papers

In this chapter, we examine the nature of conversations in citizen-police encounters in which police seek to conduct a search based on the citizen's consent. We argue that when police officers ask a person if they can search, citizens often feel enormous pressure to say yes. But judges routinely ignore these pressures, choosing instead to spotlight the politeness and restraint of the officers' language and demeanor. Courts often analyze the language of police encounters as if the conversation has an obvious, context-free meaning. The pragmatic features of language influence behavior, but courts routinely ignore or deny this fact. Instead, current …

The Contextual Rationality Of The Precautionary Principle, David A. Dana

Faculty Working Papers

This article defines the precautionary principle (PP) primarily based on what it is not: it is not quantitative cost-benefit analysis (CBA) or cost-cost analysis of the sort we associate with the Office of Management and Budget in the United States and U.S. policymaking and policy discourse generally. In this definition, the PP is a form of analysis in which the costs of a possible environmental or health risk are not quantified, or if they are, any quantification is likely to be inadequate to capture the full extent of the costs of not taking regulatory measures to mitigate or avoid the …

Comments On "Getting Scarred And Winning Lotteries: Effects Of Exemplar Cuing And Statistical Format On Imagining Low-Probability Events," By Newell, Mitchell, And Hayes (2008), Jonathan Koehler, Laura Macchi

Faculty Working Papers

Newell, Mitchell, and Hayes (NMH) conduct three experiments designed to test whether exemplar cuing (EC) theory or a statistical format theory provides a more accurate account for how people make judgments about low-probability events. They report finding support for the statistical format theory and little or no support for EC. However, NMH misstate the requirements for the production of exemplars in EC theory. As a result, they confuse non-exemplar conditions with exemplar conditions in their experiments, and find results that are virtually irrelevant to EC theory.