Social and Behavioral Sciences Commons^™

State Bankruptcy From The Ground Up, David A. Skeel Jr.

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After a brief, high profile debate, proposals to create a new bankruptcy framework for states dropped from sight in Washington in early 2011. With the debate’s initial passions having cooled, at least for a time, we can now consider state bankruptcy, as well as other responses to states’ fiscal crisis, a bit more quietly and carefully. In this Article, I begin by briefly outlining a theoretical and practical case for state bankruptcy. Because I have developed these arguments in much more detail in companion work, I will keep the discussion comparatively brief. My particular concern here is, as the title …

When The Government Is The Controlling Shareholder, Marcel Kahan, Edward B. Rock

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As a result of the 2008 bailouts, the United States Government is now the controlling shareholder in AIG, Citigroup, GM, GMAC, Fannie Mae and Freddie Mac. Corporate law provides a complex and comprehensive set of standards of conduct to protect non-controlling shareholders from controlling shareholders who have goals other than maximizing firm value. In this article, we analyze the extent to which these existing corporate law structures of accountability apply when the government is the controlling shareholder, and the extent to which federal “public law” structures substitute for displaced state “private law” norms. We show that the Delaware restrictions on …

The Legitimating Role Of Consent In International Law, Matthew J. Lister

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According to many traditional accounts, one important difference between international and domestic law is that international law depends on the consent of the relevant parties (states) in a way that domestic law does not. In recent years this traditional account has been attacked both by philosophers such as Allen Buchanan and by lawyers and legal scholars working on international law. It is now safe to say that the view that consent plays an important foundational role in international law is a contested one, perhaps even a minority position, among lawyers and philosophers. In this paper I defend a limited but …

Provocation As Partial Justification And Partial Excuse, Mitchell N. Berman

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The partial defense of provocation provides that a person who kills in the heat of passion brought on by legally adequate provocation is guilty of manslaughter rather than murder. It traces back to the twelfth century, and exists today, in some form, in almost every U.S. state and other common law jurisdictions. But long history and wide application have not produced agreement on the rationale for the doctrine. To the contrary, the search for a coherent and satisfying rationale remains among the main occupations of criminal law theorists. The dominant scholarly view holds that provocation is best explained and defended …

On The Study Of Judicial Behaviors: Of Law, Politics, Science And Humility, Stephen B. Burbank

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In this paper, which was prepared to help set the stage at an interdisciplinary conference held at the University of Indiana (Bloomington) in March, I first briefly review what I take to be the key events and developments in the history of the study of judicial behavior in legal scholarship, with attention to corresponding developments in political science. I identify obstacles to cooperation in the past – such as indifference, professional self-interest and methodological imperialism -- as well as precedents for cross-fertilization in the future. Second, drawing on extensive reading in the political science and legal literatures concerning judicial behavior, …

Adoption Of The Responsibility To Protect, William W. Burke-White

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This book chapter traces the legal and political origins of the Responsibility to Protect doctrine from its early origins in the International Commission on Intervention and State Sovereignty through the 2005 World Summit Outcome Document and up to January 2011. The chapter examines the legal meaning of the Responsibility to Protect, the obligations the Responsibility imposes on states and international institutions, and its implications in for the international legal and political systems. The chapter argues that while the Responsibility to Protect has developed with extraordinary speed, it is still a norm in development rather than a binding legal rule. Its …

Advantaging Aggressors: Justice & Deterrence In International Law, Paul H. Robinson, Adil Ahmad Haque

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Current international law imposes limitations on the use of force to defend against unlawful aggression that improperly advantage unlawful aggressors and disadvantage their victims. The Article gives examples of such rules, governing a variety of situations, showing how clearly unjust they can be. No domestic criminal law system would tolerate their use.

There are good practical reasons why international law should care that its rules are perceived as unjust. Given the lack of an effective international law enforcement mechanism, compliance depends to a large degree upon the moral authority with which international law speaks. Compliance is less likely when its …

Litigation And Democracy: Restoring A Realistic Prospect Of Trial, Stephen B. Burbank, Stephen N. Subrin

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In this essay we review some of the evidence confirming, and some of the reasons underlying, the phenomenon of the vanishing trial in federal civil cases and examine some of the costs of that phenomenon for democratic values, including in particular democratic values represented by the right to a jury trial under the Seventh Amendment. We discuss the Supreme Court’s recent pleading decisions in Twombly and Iqbal as examples of procedural attacks on democracy in four dimensions: (1) they put the right to jury trial in jeopardy; (2) they undercut the effectiveness of congressional statutes designed to compensate citizens for …