Law Commons^™

Presidential Popular Constitutionalism, Jedediah S. Purdy

Faculty Scholarship

This Article adds a new dimension to the most important and influential strand of recent constitutional theory: popular or democratic constitutionalism, the investigation into how the U.S. Constitution is interpreted (1) as a set of defining national commitments and practices, not necessarily anchored in the text of the document, and (2) by citizens and elected politicians outside the judiciary. Wide-ranging and ground-breaking scholarship in this area has neglected the role of the President as a popular constitutional interpreter, articulating and revising normative accounts of the nation that interact dynamically with citizens' constitutional understandings. This Article sets out a "grammar" of …

A New Proposal For Loan Modifications, Christopher J. Mayer, Edward R. Morrison, Tomasz Piskorski

Faculty Scholarship

We propose a new three-pronged plan to address the recent harmful flood of foreclosures. Our plan would address the major barriers that inhibit the ability of third-party servicers to modify mortgages the way portfolio lenders are now doing with greater success. The plan provides greater compensation for servicers to perform their duties, removes legal constraints that inhibit modification, and addresses critical second liens that often get in the way of effective mortgage modifications. Our plan has more modest costs than competing plans and is likely to be the most effective while still protecting the rights of investors in mortgage-backed securities.

Ensuring Defense Counsel Competence At International Criminal Tribunals, Sonja B. Starr

Articles

This article addresses the problem of incompetent representation by defense counsel in international criminal tribunals. According to the author, the ineffectiveness of a particular attorney may be attributable to a number offactors, including a lack of experience with international criminal law, unfamiliarity with the procedures of international criminal tribunals, and the simple failure to be fluent in the languages used by the court. Starr explains that the problem of incompetence persists because of obstacles to the recruitment, retention, and appointment of proficient defense lawyers, as well as the lack of administrative or judicial oversight concerning competence. The author points out …

Sentence Reduction As A Remedy For Prosecutorial Misconduct, Sonja B. Starr

Articles

Current remedies for prosecutorial misconduct, such as reversal of conviction or dismissal of charges, are rarely granted by courts and thus do not deter prosecutors effectively. Further, such all-or-nothing remedial schemes are often problematic from corrective and expressive perspectives, especially when misconduct has not affected the trial verdict. When granted, these remedies produce windfalls to guilty defendants and provoke public resentment, undermining their expressive value in condemning misconduct. To avoid these windfalls, courts refuse to grant any remedy at all, either refusing to recognize violations or deeming them harmless. This often leaves significant non-conviction-related harms unremedied and egregious prosecutorial misconduct …

Peking University School Of Transnational Law: A New Venture In International Legal Relations, Howard Bromberg

Articles

The School of Transnational Law (STL) is largely the work of two men of vision, Hai Wen, Vice-President of Peking University, and Jeffrey Lehman, former Dean of the University of Michigan Law School and President of Cornell University. Both were instrumental members of the Joint Center for China-U.S. Law and Policy Studies Institute (the Joint Center), founded in 2005, whose mission is to “nurture harmony between the Chinese and American legal systems through the dissemination of knowledge.” Hai and Lehman aspired to create a law school that would integrate China’s bold entry into global business and international diplomacy with a …

Greenhouse Gases: Emerging Standards For Impact Review, Michael B. Gerrard

Faculty Scholarship

Numerous federal and state judicial decisions have established that environmental impact statements (EISs) under the National Environmental Policy Act (NEPA) and its state equivalents should examine the impact of proposed projects on emissions of greenhouse gases (GHG), the principal anthropogenic cause of climate change. Administrative agencies and court settlements are now establishing the guidelines for the conduct of these examinations.

Coal-Fired Powerplants Dominate Climate Change Litigation, Michael B. Gerrard

Faculty Scholarship

Litigation aiming to reduce emissions of greenhouse gases (GHGs) is coming to be dominated by battles over coal-fired power plants. Ten of the last 20 judicial or administrative decisions or case filings in matters aiming to reduce GHGs have concerned such plants. A concerted effort by the environmental community to fight the use of coal is behind much of this litigation. According to the Energy Information Administration, the combustion of coal is the largest source of GHG emissions in the United States; motor vehicles are a not-very-close second.

The Sierra Club has a Web site that tracks all the proposed …

Cash-For-Clunkers Program: Better For Industry Than Environment, Michael B. Gerrard

Faculty Scholarship

On June 24, President Barack Obama signed into law the Consumer Assistance to Recycle and Save Act of 2009 (CARS). For a limited period of time, it will give up to $4,500 to owners of vehicles with poor fuel economy who trade them in for more efficient new vehicles. This “cash-for-clunkers” program was touted as meeting three objectives: increasing vehicle sales, at a time when the U.S. auto industry is struggling; reducing fuel use; and reducing greenhouse gas emissions.

This column will describe how the new program will work and what kinds of vehicles can be turned in and purchased …

The Pto And The Market For Influence In Patent Law, Clarisa Long

Faculty Scholarship

As statutory schemes go, the patent statute has been relatively stable from 1952 to the present. In contrast to copyright law, where Congress has taken a close – indeed at times intense – interest in the details of the statutory scheme, legislative intervention into the patent statute, when it has occurred, has been more limited and narrower in scope. For many reasons, however, patent law has been disequilibrating over time, and calls for patent reform have been increasing in intensity. One of the many factors contributing to this disequilibration in recent years has been the ongoing emergence of the U.S. …

Is Justice Relevant To The Law Of War, George P. Fletcher

Faculty Scholarship

Intellectual work on the law of war suffers from chronic isolation. The commentators on the Rome Statute are international lawyers who pay no attention to the work either of theoretical criminal lawyers or of the philosophers. The philosophers – Jeff McMahan as an outstanding example – ignore the legal details that dominate the books of the international lawyers. Criminal lawyers have much to contribute to the discussion of international law, but they seem not to be interested. Writers with limited audiences, living in closed worlds, are unaware of what they have to learn from those with a different take on …

Thou Good And Faithful Servant, Carl E. Schneider

Articles

Lawmakers are stewards of social resources. A current debate-over screening newborns for genetic disorders-illuminates dilemmas of that stewardship that have particularly plagued bioethics. Recently in the Report, Mary Ann Baily and Thomas Murray told the story of little Ben Haygood. He died from MCADD, a genetic disorder that can make long fasting fatal. Screening at birth would have let doctors alert Ben's parents. "After Ben died," Baily and Murray wrote, "his father became a passionate advocate for expanding Mississippi's newborn screening program to add MCADD and other disorders." Soon, the Ben Haygood Comprehensive Newborn Screening Act increased the number …

'Race Salience' In Juror Decision-Making: Misconceptions, Clarifications, And Unanswered Questions, Samuel R. Sommers, Phoebe C. Ellsworth

Articles

In two frequently cited articles, Sommers and Ellsworth (2000, 2001) concluded that the influence of a defendant’s race on White mock jurors is more pronounced in interracial trials in which race remains a silent background issue than in trials involving racially charged incidents. Referring to this variable more generally as "race salience," we predicted that any aspect of a trial that leads White mock jurors to be concerned about racial bias should render the race of a defendant less influential. Though subsequent researchers have further explored this idea of "race salience," they have manipulated it in the same way as …

Introduction, George A. Bermann

Faculty Scholarship

Who would have imagined even fifteen years ago that a notion of "EU citizenship" would come to occupy center-stage in the arena of EU legal developments and widely permeate fields of EU law to which citizenship at the EU level long appeared to have little to say? By contrast, Member State citizenship lay at the heart of things from the start, as rights and obligations alike seemed to turn, at least largely, on whether an interested person bore the citizenship or nationality of a Member State.

Secularism, Religion, And Liberal Democracy In The United States, Kent Greenawalt

Faculty Scholarship

This essay is divided into three categories: some brief remarks about forms of secularism, an outline of American constitutional law as it relates to religion, and a discussion from the standpoint of political philosophy of the proper place of religion (and other similar perspectives) in making political decisions within liberal democracies. Because the audience for whom the oral comments from which the essay is derived was mainly non-American, the middle part of the essay sets out many propositions familiar to anyone acquainted with this branch of constitutional law. And because of the informal nature of the original presentation, I offer …

The Rule Of Law And The Exemption Strategy, Kent Greenawalt

Faculty Scholarship

Do exemptions from ordinary legal requirements for religious individuals and groups contravene the rule of law? If they do only sometimes, rather than always or never, under what circumstances do they do so? This Article explores these intriguing questions, raised powerfully by Marci Hamilton's important and challenging book God vs. the Gavel.

I offer some general observations about the concept of the rule of law, sketch problems posed by religious exemptions, survey various accepted features of our legal order that may seem similarly in tension with the rule of law, and consider in detail the significance of certain kinds of …

Intervention To Stop Genocide And Mass Atrocities: International Norms And U.S. Policy, Matthew C. Waxman

Faculty Scholarship

The collective international failure to stop genocidal violence and resulting humanitarian catastrophe in Sudan prompts the familiar question of whether the United States or, more broadly, the international community has the political will and capabilities necessary to deter or stop mass atrocities. It is well understood that mobilizing domestic and international political support as well as leveraging diplomatic, economic, and maybe even military tools are necessary to stop mass atrocities, though they may not always be enough. Other studies have focused, therefore, on what steps the United States and its international partners could take to build capabilities of the sort …

What Went Wrong? A Tragedy In Three Acts, John C. Coffee Jr.

Faculty Scholarship

I am going to tell today a simple story of greed, rationalization, and sloth; it is a tragedy in three acts. The first act involves the collapse of what I will call the Great American Housing Bubble. The second act involves the failure of the gatekeepers, in particular; what happened at those credit rating agencies that could lead them to rate everything investment-grade? In the final act, I will turn to the collapse of the investment banks, the failure of securities regulation, and where that leaves us.

Although this is a tragedy, it is not a Shakespearian tragedy because Shakespearian …

Self-Defense And The Psychotic Aggressor, George P. Fletcher, Luis E. Chiesa

Faculty Scholarship

This chapter presents an authoritative overview of self-defense against the psychotic aggressor. More specifically, it examines whether one can justifiably kill a faultless, insane assailant to save himself or another from imminent and serious harm. It considers the disagreement among scholars as to whether the defensive response should be considered justified or merely excused, or whether the specific ground of acquittal should be self-defense or necessity. The chapter includes comments by some of the nation's top legal scholars from the field of criminal law, tackling topics such as proportionality, self-defense against wrongful attack, justification of homicide against innocent aggressors without …

Post-Modern Meditations On Punishment: On The Limits Of Reason And The Virtues Of Randomization, Bernard E. Harcourt

Faculty Scholarship

This chapter presents an authoritative overview of punishment, with particular emphasis on the limits of reason and the virtue of randomization. It includes comments by some of the nation's top legal scholars from the field of criminal law, tackling topics such as the Enlightenment ideal of social engineering through punishment and the role of chance in the administration of criminal justice.