Law Commons^™

A Better Direction For California's Climate Change Policy, David Gamage, Mark Gergen

Mark P. Gergen

No abstract provided.

Elite Institutionalism And Judicial Assertiveness In The Supreme Court Of India, Manoj Mate

Manoj S. Mate

What Are Transitions For? Atrocity, International Criminal Justice, And The Political, Paulo Barrozo

Paulo Barrozo

This essay offers an answer to the question of what societies afflicted by atrocities ought to transition into. The answer offered is able to better direct the evaluation of previous models and the design of new models of transitional justice. Into what, then, should transitional justice transition? I argue in this essay that transitional justice should be a transition into the political, understood in its robust liberalism version. I further argue that the most significant part of transitions ought to happen in the minds of the members of political communities, precisely where the less tangible and yet most important dimension …

On The Bicentennial Of The Treaty Of Ghent, Reflecting On Its Slavery Clauses, Ann Lousin

Ann M. Lousin

Representing In-Between: Law, Anthropology, And The Rhetoric Of Interdisciplinarity, Annelise Riles

Annelise Riles

This article considers how lawyers and nonlawyers discuss the contribution of interdisciplinary scholarship to the law as a means of rethinking the relationship between these differences. The article first examines the arguments of the nineteenth-century lawyer Henry Maine and of the twentieth-century anthropologist Edmund Leach on the subject, and notes the difference between Maine's emphasis on "movement" from one theoretical discovery to another and Leach's emphasis on creating relationships between disciplines by exploiting a "space in between" the two. Then, turning to contemporary scholarship in legal anthropology, "Law and Society," and the sociology of law, the article critiques the rigid …

From Multiculturalism To Technique: Feminism, Culture, And The Conflict Of Laws Style, Karen Knop, Ralf Michaels, Annelise Riles

Annelise Riles

The German Chancellor, the French President, and the British Prime Minister have each grabbed world headlines with pronouncements that their states' policies of multiculturalism have failed. As so often, domestic debates about multiculturalism, as well as foreign policy debates about human rights in non- Western countries, revolve around the treatment of women. Yet feminists are no longer even certain how to frame, let alone resolve, the issues raised by veiling, polygamy, and other cultural practices oppressive to women by Western standards. Feminism has become perplexed by the very concept of "culture." This impasse is detrimental both to women's equality and …

Property As Legal Knowledge: Means And Ends, Annelise Riles

Annelise Riles

This article takes anthropologists’ renewed interest in property theory as an opportunity to consider legal theory-making as an ethnographic subject in its own right. My focus is on one particular construct – the instrument, or relation of means to ends, that animates both legal and anthropological theories about property. An analysis of the workings of this construct leads to the conclusion that rather than critique the ends of legal knowledge, the anthropology of property should devote itself to articulating its own means.

Foreword: Accountability For International Crimes And Serious Violations Of Fundamental Human Rights, Madeline Morris, Karen Knop, Annelise Riles

Annelise Riles

No abstract provided.

Reforming Knowledge? A Socio-Legal Critique Of The Legal Education Reforms In Japan, Annelise Riles, Takashi Uchida

Annelise Riles

This article critiques the current Japanese legal education reforms, modeled largely on the United States, by proposing a socio-technical framework for analyzing the distribution of legal expertise in a given society. On one side of the spectrum is the "monocentric" model of legal expertise, in which expertise is monopolized by the profession and legal literacy is low. On the other side of the spectrum is the "polycentric" model of legal expertise, in which a range of social and institutional actors share responsibility for legal expertise and legal literacy is high. If the U.S. is a more monocentric system, the Japanese …

Foreword: Transdisciplinary Conflicts Of Law, Ralf Michaels, Karen Knop, Annelise Riles

Annelise Riles

This introduction to our co-edited special issue of Law and Contemporary Problems addresses how interdisciplinary studies might contribute to the revitalization of the field of Conflict of Laws. The introduction surveys existing approaches to interdisciplinarity in conflict of laws - drawn primarily from economics, political science, anthropology and sociology. It argues that most of these interdisciplinary efforts have remained internal to the law, relating conflicts to other legal spheres and issue areas. It summarizes some of the contributions of these projects but also outlines the ways they fall short of the full promise of interdisciplinary work in Conflicts scholarship, and …

Is Jus In Bello In Crisis?, Jens Ohlin

Jens David Ohlin

It is a truism that new technologies are remaking the tactical and legal landscape of armed conflict. While such statements are undoubtedly true, it is important to separate genuine trends from scholarly exaggeration. The following essay, an introduction to the Drone Wars symposium of the Journal, catalogues today’s most pressing disputes regarding international humanitarian law (IHL) and their consequences for criminal responsibility. These include: (i) the triggering and classification of armed conflicts with non-state actors; (ii) the relative scope of IHL and international human rights law in asymmetrical conflicts; (iii) the targeting of suspected terrorists under concept- or status-based classifications …

Attempt, Conspiracy, And Incitement To Commit Genocide, Jens Ohlin

Jens David Ohlin

In these brief commentaries to the U.N. Genocide Convention, I explore three criminal law modes of liability as they apply to the international crime of genocide. Part I analyzes attempt to commit genocide and uncovers a basic tension over whether attempt refers to the genocide itself (the chapeau) or the underlying offense (such as killing). Part I concludes that the tension stems from the fact that the crime of genocide itself is already inchoate in nature, since the legal requirements for the crime do not require an actual, completed genocide, in the common-sense understanding of the term, but only a …

On The Very Idea Of Transitional Justice, Jens Ohlin

Jens David Ohlin

The phrase "transitional justice" has had an amazingly successful career at an early age. Popularized as an academic concept in the early 1990s in the aftermath of apartheid's collapse in South Africa, the phrase quickly gained traction in a variety of global contexts, including Rwanda, Yugoslavia, Cambodia, and Sierra Leone. A sizeable literature has been generated around it, so much so that one might even call it a sub-discipline with inter-disciplinary qualities. Nonetheless, the concept remains an enigma. It defines the contours of an entire field of intellectual inquiry, yet at the same time it hides more than it illuminates. …

License To Deal: Mandatory Approval Of Complex Financial Products, Saule Omarova

Saule T. Omarova

“There is definitely going to be another financial crisis around the corner because we haven’t solved any of the things that caused the previous crisis,” said hedge fund legend Mark Mobius, speaking in Tokyo nearly a full year after the United States officially embarked upon the greatest reform of financial services regulation since the New Deal. Today, the world is still reeling from the recent financial crisis, which ravaged even the strongest economies and left them battling recession, budget deficits, soaring unemployment, and political discontent. Facing another financial crisis in this situation is a frightening prospect. National governments, individually or …

Risks, Rules, And Institutions: A Process For Reforming Financial Regulation, Saule Omarova, Adam Feibelman

Saule T. Omarova

It is fair to say that reforming the regulation of the financial sector is currently one of the most hotly debated issues on the policymaking agenda. Proposals for such reform are proliferating, and the official sector appears committed to adopting at least some meaningful reforms in the near-term. Broadly speaking, this movement toward regulatory reform emphasizes the need for structural reforms, outlines specific rules and regulations targeting primarily the perceived causes of the current crisis, and is carried along by a strong sense of the moment. Rather than add to the body of institutional and substantive proposals, this Article articulates …

The European Pasteurization Of French Law, Mitchel Lasser

Mitchel Lasser

In a series of stunning decisions handed down in the last few years, the European Court of Human Rights (ECHR) has condemned the decisionmaking procedures traditionally used by the French Supreme Courts (i.e., the Cour de cassation and the Conseil d'Etat). This Article traces and critiques this developing “fair trial” jurisprudence, which has also resulted in the condemnation of the supreme courts of Belgium, Portugal, and the Netherlands, whose decisionmaking procedures were all patterned on the French civil law model. Finally, the Article examines the dramatic and schismatic French responses that have ensued.

This Article offers a case study at …

Bretton Woods 1.0: A Constructive Retrieval For Sustainable Finance, Robert Hockett

Robert C. Hockett

Global trade imbalance and domestic financial fragility are intimately related. When a nation runs persistently massive current account deficits to maintain global liquidity as has the United States now for decades, its central bank effectively relinquishes exchange rate flexibility to become a de facto central bank to the world. That in turn prevents the bank from playing its essential credit-modulatory role at home, at least absent strict capital controls that are difficult to administer and have long been taboo. And this can in turn render credit-fueled asset price bubbles and busts all but impossible to prevent, irrespective of the nation's …

Why (Only) Esops?, Robert Hockett

Robert C. Hockett

No abstract provided.

Making Sense Of The Health Care Reform Debate, Robert Hockett

Robert C. Hockett

It has been bemusing to behold how ill-informed, mis-informed, and even dis-informed much of the current debate over health care reform has been these past several months. Some of the trouble surely has stemmed from bad faith on the part of some protagonists. Another part of the trouble has stemmed from ineffective communication on the part of other protagonists. Much of our trouble, however, might stem from less than full clarity on all of our parts about two facts. The first is that in talking about “health care reform” as a public policy issue, we are actually talking about social …

Promise Against Peril: Of Power, Purpose, And Principle In International Law, Robert Hockett

Robert C. Hockett

I take two recent monographs on international law – Mary Ellen O’Connell’s "The Power and Purpose of International Law," and Eric Posner’s "The Perils of Global Legalism," as case studies in a more general inquiry into the role of the "rule of law" ideal in domestic and international law. I argue that international and domestic law alike give varyingly explicit and effective expression to the rule of law ideal, and that the task before us is accordingly steadily to improve their effectiveness in so doing, not to pretend that there is no role for this ideal to play in interpreting …

It Takes A Village: Municipal Condemnation Proceedings And Public/Private Partnerships For Mortgage Loan Modification, Value Preservation, And Local Economic Recovery, Robert Hockett

Robert C. Hockett

Respected real estate analysts forecast that the U.S. is now poised to experience a renewed round of home mortgage foreclosures over the coming six years. Up to eleven million underwater mortgages will be affected. Neither our families, our neighborhoods, nor our state and national economies can bear a resumption of crisis on this order of magnitude.

I argue that ongoing and self-worsening slump in the primary and secondary mortgage markets is rooted in a host of recursive collective action challenges structurally akin to those that brought on the real estate bubble and bust in the first place. Collective action problems …

The Future Of Source-Based Taxation Of The Income Of Multinational Enterprises, Robert Green

Robert A. Green

No abstract provided.

Statutory Liens And The Bankruptcy Act: U.C.C. § 2-702 And Section 67(C), Robert Green

Robert A. Green

Rulemaking Vs. Democracy: Judging And Nudging Public Participation That Counts, Cynthia Farina, Mary Newhart, Josiah Heidt

Cynthia R. Farina

This essay considers how open government “magical thinking” around technology has infused efforts to increase public participation in rulemaking. We propose a framework for assessing the value of technology-enabled rulemaking participation and offer specific principles of participation-system design, which are based on conceptual work and practical experience in the Regulation Room project at Cornell University. An underlying assumption of open government enthusiasts is that more public participation will lead to better government policymaking: If we use technology to give people easier opportunities to participate in public policymaking, they will use these opportunities to participate effectively. However, experience thus far with …

Statutory Interpretation And The Balance Of Power In The Administrative State, Cynthia Farina

Cynthia R. Farina

Better Inputs For Better Outcomes: Using The Interface To Improve E-Rulemaking, Cynthia Farina, Claire Cardie, Thomas Bruce, Erica Wagner

Cynthia R. Farina

We believe that e-rulemaking does indeed have potential to increase both the transparency of, and participation in, regulatory policymaking. We argue in this paper that this potential can be realized only if the public interface at www.regulations.gov is substantially redesigned.

Achieving The Potential: The Future Of Federal E-Rulemaking, Report Of The Committee On The Status And Future Of Federal E-Rulemaking, Cynthia Farina

Cynthia R. Farina

No abstract provided.

Getting From Here To There, Cynthia Farina

Cynthia R. Farina

No abstract provided.

Regulatory Improvement Legislation: Risk Assessment, Cost-Benefit Analysis, And Judicial Review, Fred Anderson, Mary Chirba-Martin, E. Donald Elliott, Cynthia Farina

Cynthia R. Farina

No abstract provided.

The Value Of Words: Narrative As Evidence In Policymaking, Dmitry Epstein, Josiah Heidt, Cynthia Farina

Cynthia R. Farina

Policymakers today rely primarily on statistical, financial, and other forms of technical data as their basis for decision-making. Yet, there is a potentially underestimated value in substantive reflections of the members of the public who will be affected by a particular piece of regulation. We discuss the value of narratives as input in the policy making process, based on our experience with Regulation Room–a product of an interdisciplinary initiative using innovative web technologies in real-time online experimentation. We describe professional policymakers and professional commenters as a community of practice that has limited shared repertoire with the lay members of the …