New York University Public Law and Legal Theory Working Papers

Supersession and Sovereignty

Jeremy Waldron — Tue, 18 Jun 2013 10:11:43 PDT

This paper -- presented originally as the Julius Stone lecture at the University of Sydney (Australia) in 2006 -- considers the application of the thesis of "supersession of historic injustice" to issues of sovereignty. The supersession thesis has ben applied in the past to historic injustice concerning land and property rghts in formler colonial contexts; but it may also be applied to the historic legacy of the unjust subjugation of a people. It considers and criticizes reversion theories, which suggest that the proper remedy for unjust subjugation is some sort of reversion to the politcal status quo ante. The paper argues that this cannot be entertained without considering the great differences in statecraft and political circumstances that may have emerged since the time of the unjust subjugation. Those considerations may affect the way we apply the principle of self-determination to these contexts.

Human Rights: A Critique of the Raz/Rawls Approach

Jeremy Waldron — Tue, 18 Jun 2013 07:41:51 PDT

This paper examines and criticizes the suggestion that we should interpret the “human” in “human rights” as (i) referring to the appropriate sort of action when certain rights are violated rather than (ii) the (human) universality of certain rights. It considers first a crude version of (i) — the view that human rights are rights in response to whose violation we are prepared to countenance humanitarian intervention; then it considers more cautious and sophisticated versions of (i). It is argued that all versions of (i) distract us with side issues in our thinking about human rights, and sell short both the individualism of rights and the continuity that there is supposed to be between human rights and rights in national law. The paper does not deny that there are difficulties with views of type (ii). But it denies that the positing of views of type (i) gives us reason to abandon the enterprise of trying to sort these difficulties out.

Drones and the Dilemma of Modern Warfare

Samuel Issacharoff et al. — Tue, 18 Jun 2013 07:41:48 PDT

This essay argues that four commonly repeated concerns surrounding the use of drones to target identifiable individuals for lethal force rest on various legal and historical misconceptions and misunderstandings. These concerns are that: (1) that targeting specific individuals for death is a modern innovation in military practice; (2) that greater modern technological capacity to project force from a distance itself raises entirely new legal issues; (3) that drones and targeted killing pose a major threat to the humanitarian purposes and aims of the laws of war; and (4) that drone warfare is likely to make the use of force “too easy.” After addressing these issues, the essay turns to what is instead most distinctive about drone strikes from a legal, moral, and policy perspective. The issues that are truly critical revolve around an emerging transformation of the nature and norms of modern warfare; these issues reflect the more profound fact that we are moving toward a world that requires the individuation of personal responsibility of specific “enemy” persons before the use of military force is considered justified, at least as a moral and political matter.

This transformation is pervasive, with sweeping ramifications. Even as the U.S. government asserts that it is at war, it is not mechanically applying the traditional law of war principle that lethal force can be directed against any member of the enemy armed forces. Instead, the government is individuating the responsibility of specific enemies and targeting only those engaged in specific acts or employed in specific roles. The government is making what has all the appearance (and reality) of adjudicative-like judgments based on highly specific facts about the alleged actions of particular individuals. The key legal, moral, and policy questions then become how an appropriate framework for making such individualized decisions should be structured. From an ex ante perspective, what kinds of processes should be considered adequate to make these judgments? Which institutions should play what roles in such individuated judgments about the identity of “the enemy?” From an ex post perspective, what kind of review and accountability ought to be required of these decisions? After clearing the ground of the more common misperceptions about the use of drones, the essay begins to develop a general framework for designing processes and institutions that offer appropriate answers to these essential questions.

Juvenile Criminal Record Confidentiality

James B. Jacobs — Wed, 05 Jun 2013 10:03:51 PDT

Confidentiality of the juvenile's criminality and contacts wit the criminal justice system was central to the raison d'etre of the juvenile court. Consequently, juvvenile court personnel and their legislative allies limited the disclosure of juvenile respondents' identities,c riminal conduct and court processing. Nevertheless, to do its work, the court collected and shared a great deal of information. Even more information was purposefully and/or inadvertently disclosed by police departments. After the Gault decision, the commitment to confidentiality waned. By the 1980s, emphasis on government transparency and protecting society significantly undermined the policy and practice of juvenile justice system confidentiality. Without that commitment, the juvenile court and juvenile justice are very much weakened.

Comparative Wrongful Dismissal Law: Reassessing American Exceptionalism

Samuel Estreicher et al. — Tue, 04 Jun 2013 07:58:51 PDT

Commentators have long debated the merits of the United States’ "at-will" rule, which allows employers and employees to end the employment relationship without cause or notice, absent a constitutional, statutory, or public policy exception. One premise for both proponents and opponents of at-will employment is to stress the uniqueness of this default among other developed countries, which generally require "cause" for most dismissals.

Although other countries’ cause regimes differ significantly from the U.S. on paper, this Article addresses whether those differences in normative law also reflect differences in employees’ protection against wrongful termination in reality. The existing literature on dismissal law stops at a comparison of countries’ normative laws as they appear on the books. In comprehensively examining the dismissal regimes of numerous countries, this Article goes beyond the text of the relevant statues and cases by using information from foreign employment law practitioners and available data - particularly claimants’ success rates and average remedies - in an attempt to observe how the laws actually operate. We find that, even on paper, the cause protection of the surveyed countries is far less robust than typically described. Moreover, the actual practice in these countries shows that challenges to dismissal can be difficult to pursue and generally result in modest remedies by U.S. standards. This suggests that the U.S., with its at-will default and broader remedies, is actually part of relatively narrow continuum of employment laws found in advanced countries.

This Article hopes to spur more in-depth descriptive work on the employment laws of other countries and to broaden the terms of the debate over the relative merits of the U.S. employment dismissal system and the dismissal systems of cause regimes.

Of 'Singles' Without Baseball: Corporations as Frozen Relational Moments

Burt Neuborne — Wed, 29 May 2013 12:35:48 PDT

Professor Neuborne argues that we should view corporations as collections of individuals joined together to advance a common goal. In many constitutional settings – such as equal protection, due process and 4th amendment privacy – where the interests of the individuals who constitute the corporate enterprise would be uniformly advanced by the recognition of an enforcement agent capable of vigorously enforcing the rights of all, it makes sense to indulge in the fiction that a corporation is a freestanding entity with constitutional rights of its own. Such a fiction enables corporate management to function as an efficient enforcement agent for the collective.

Where, however, as in campaign spending or self-incrimination there will almost certainly be conflicts of interest between and among the corporate participants, it distorts the power relationships within the corporate enterprise to vest corporate management with the power to use general treasury funds to advance an electoral candidate who is opposed by many shareholders. In such a conflict of interest setting, corporate management should not be vested with power to enforce a collective right. Rather, the participants themselves must assert it. That is how the Supreme Court has treated corporate 5th Amendment self- incrimination rights for a century. It is also how electoral speech rights should be treated. Accordingly, Citizens United was wrongly decided.

The Federal Right to an Adequate Education

Barry Friedman et al. — Wed, 15 May 2013 06:20:49 PDT

Common wisdom has it that there is no federal constitutional right to an education; indeed, under our charter of negative liberties the common understanding is that there are no positive rights at all. This Article challenges common wisdom, arguing that there is in fact a federal constitutional right to a minimally adequate education. In doing so it calls into question the value of long-standing debates about the proper way to interpret the Constitution and suggests an alternative—not a new one, but a time-honored methodology. While theoretical battles about interpretation rage, judges (on both the right and left) continue to interpret the Constitution in much the same way: by looking at text, framing intentions, pre-ratification practice, judicial precedents, and subsequent practice by the state and federal governments. Particularly in Due Process cases, this is how judges discern the “history and traditions of the American people.” Employing this methodology, the case for a federal right to a minimally adequate education is remarkably compelling. This analysis also raises interesting questions about the possibility of finding other positive rights in the Constitution.

A PROCESS ACCOUNT OF THE ENDOWMENT EFFECT: VOLUNTARY DEBIASING THROUGH AGENTS AND MARKETS

Jennifer Arlen et al. — Fri, 10 May 2013 13:07:07 PDT

We contest the loss aversion theory of the endowment effect, in which the effect depends on the status of endowment alone. Instead, we propose that the nature of the trading process determines whether people resist or accept an exchange by affecting the responsibility people feel for their choice. The more they feel responsible for the decision, the more they expect experiencing regret over a negative outcome. Aversion to regret causes people to resist a rational trade and exhibit the endowment effect. In a series of experiments, we analyze two institutions that alter the trading process and reduce perceived responsibility --agency and markets. We find that both mute the endowment effect; moreover, participants intentionally use them to self-debias. Since many institutions shift responsibility, we conclude that the endowment effect is not present in many domains previously thought to implicate it. Institutional design often need not rely on paternalistic intervention.

Economic Analysis of Medical Malpractice Liability and its Reform

Jennifer Arlen — Thu, 09 May 2013 07:46:51 PDT

This Chapter provides an economic analysis of medical error employing a model in which physicians who provide suboptimal medical care may have done so knowingly (as in the traditional model) or accidentally. Accidental medical error is a leading cause of medical negligence: many if not most physicians who provided suboptimal care did not know they were doing so but instead misdiagnosed the patient, unintentionally selected the wrong treatment or erred in treatment provision. Accordingly, in order to promote optimal health care markets, malpractice liability must be structured to both induce physicians to want to provide optimal treatments (when they are informed) and to invest optimally in the expertise and patient safety measures which reduce the risk that they will misdiagnose the patient, select the wrong treatment, or err in the delivery of care. This Chapter shows that negligence liability can achieve both goals, but only if expected damages for accidental negligence are less than the ex post cost of the harm imposed. Malpractice liability can be relied on to induce optimal investment in patients’ welfare only if medical institutions also are directly liable to their patients for harms caused by medical error and if medical providers and insurers are precluded from contracting over liability with patients.

REALITY CHECK: HOW MALPRACTICE FACTS CHANGED MALPRACTICE LIABILITY THEORY

Jennifer Arlen — Wed, 08 May 2013 08:58:51 PDT

Empirical legal studies has transformed economic analysis of malpractice liability. Until recently, economic analysis of malpractice liability has been based on the traditional model of accidents. This model supports the conclusion that malpractice liability may not be needed if health insurers, not physicians, bear treatment costs. Moreover, this analysis implies that even when liability is welfare-enhancing, it need not be mandatory if patients are informed about the costs and benefits of liability. Empirical analysis of medical errors reveals that we cannot rely on the simple model of accidents to analyze optimal malpractice liability because patient safety depends on two different care decisions, only one of which is properly captured by the traditional model. Expanding the model to account for the two distinct ways that physicians protect patients reveals that malpractice liability is needed even when doctors want to select the right treatment. It also reveals why contractual malpractice liability is inefficient even when patients are informed about the costs and benefits of liability.

Oversight of national security secrecy in the United States

Stephen J. Schulhofer — Tue, 30 Apr 2013 07:23:30 PDT

Some secrecy in national security matters is appropriate and inevitable, but unilateral executive control over decisions whether to impose secrecy is not. Executive control over sensitive information presumes a unique executive expertise. Yet the executive branch is not the sole repository of the relevant knowledge and experience. Congress has considerable national security expertise, and courts have solid institutional capacities to elicit expertise. In any case, information-access judgments demand an appreciation for the value of both secrecy and transparency, and the ability to make fine-grained judgments that accommodate both. Yet national security officials are predisposed to abhor transparency. Courts offer not only the obvious advantage of independence from self-interested incentives, but also the rarely noticed point that they are superior in some essential forms of expertise.

This paper, a chapter in the forthcoming comparative law volume Secrecy, National Security and the Vindication of Constitutional Law (David Cole, Federico Fabbrini & Arianna Vedaschi, eds.), examines the expertise and incentives of executive, legislative and judicial officials, and uses that framework to assess possible approaches to oversight of decisions to impose secrecy. It deploys that perspective to propose a framework for effective oversight of executive branch judgments about access to national security information.

How to Talk About the Constitution

Sara Aronchick Solow et al. — Thu, 25 Apr 2013 06:52:26 PDT

For the last thirty years, debates about interpretive methodology have preoccupied academics to the detriment of substantive discussions about constitutional meaning. Scholars have spent all their time talking about talking about the Constitution, rather than just talking about the Constitution. The publication of Jack Balkin’s book Living Originalism provides an auspicious moment to urge abandoning the first project in favor of the second. For all their intensity, debates about constitutional interpretive methodology have had meager payoff. Judges continue to interpret using a familiar collection of sources, which scholars should tap in greater detail in order to consider new constitutional meanings. Making good on this proposal, this Article sketches out how traditional interpretive techniques support something that has not previously been thought to exist – a federal right to a minimally-adequate education. It then concludes by indicating other directions in which robust discussions of constitutional meaning might lead.

Enforcement Redundancy and the Future of Immigration Law

Adam B. Cox — Fri, 19 Apr 2013 07:42:56 PDT

It is commonplace for states to help enforce federal law. Indeed, "enforcement redundancy" is a widespread and typically unremarkable aspect of American federalism. Local police regularly arrest people for violating federal criminal law; states criminalize wide swaths of conduct, like dealing drugs, that are also federal offenses; and states often attach civil penalties to conduct, such as workplace discrimination, already proscribed by federal law. Nevertheless, in United States v. Arizona — the most significant immigration federalism case in decades — the Supreme Court vitiated Arizona’s efforts at redundant enforcement.

This Article explores why the Arizona Court rejected redundant enforcement and what implications the rejection holds for the future of immigration law. The Court rejected redundant enforcement, I argue, by conceptualizing law as a set of prices rather than a series of obligations. This analytic framework constitutes a radical departure from conventional approaches to preemption. Moreover, the approach is one the Court cannot possibly embrace as a general way of analyzing intergovernmental conflicts. Doing so would eliminate vast swathes of state regulatory authority and dramatically reshape our federal system.

The Court’s law-as-price approach makes Arizona much more a case about separation of powers than one about federalism. It consolidates tremendous immigration policymaking power in the Executive Branch, endorsing the idea that immigration law is centrally the product of executive “lawmaking” that bears little relation to immigration law on the books. The Court’s decision to ratify this sort of Presidential control over migration policy has important implications for the ongoing transformation of immigration law, as well as for the future of American federalism.

NOTICE AND THE NEW DEAL

Mila Sohoni — Wed, 17 Apr 2013 13:36:34 PDT

The New Deal Supreme Court revised a well-known set of constitutional doctrines. Legal scholarship has principally focused on the changes that occurred in three areas — federalism, delegation, and economic liberty. This Article identifies a new and important fourth element of New Deal constitutionalism: a change in the constitutional doctrine of due process notice, the doctrine that specifies the minimum standards for constitutionally adequate notice of the law. The law of due process notice — which includes the doctrines of vagueness, retroactivity, and the rule of lenity — evolved dramatically over the course of the New Deal to permit lesser clarity and to tolerate more retroactivity. The upshot has been the near-total elimination of successful notice-based challenges other than in the limited context of First Amendment vagueness attacks.

Unlike the more famous doctrinal changes of this period, changes to due process notice doctrine were not obviously necessary to accommodate the New Deal legislative agenda, either as a matter of jurisprudence or as a matter of politics. Due process notice doctrine nonetheless underwent a radical transformation in this era, as the Court came to regard its broader shift toward deferring to legislative and executive policy decisions as requiring the relaxation of due process notice doctrine. The link forged between deference and notice had significant functional effects on the most important audience for the Court’s notice jurisprudence — Congress. By loosening the strictures of due process notice doctrine, the Court lowered sharply the enactment costs of federal legislation and thereby facilitated its proliferation. This is a distinct, and hitherto unacknowledged, mechanism by which the Court in this period enhanced national power and encouraged the flourishing of the emerging administrative state.

Like much of the New Deal “settlement,” the New Deal reformulation of due process notice doctrine is today the subject of ferment in the courts. Recognizing the New Deal roots of due process notice doctrine is critical for understanding these ongoing judicial debates — and for beginning the conceptual work of mapping the future shape of this vital cluster of doctrines.

(Re)Arrangement of State/Islam Relations in Egypt’s Constitutional Transition

Gianluca Paolo Parolin — Mon, 15 Apr 2013 11:27:39 PDT

After briefly framing state/shari‘ah relations in pre-2011 Egypt, the paper (1) describes the negotiations behind the (re)arrangement of shari‘ah-provisions in the new constitution, (2) analyzes the content of the new provisions in their Hegelian relation to the previous Supreme Constitutional Court jurisprudence—expounding on the complex articulation of the explanatory note to art. 2 (art. 219)—, and (c) considers the ramifications of the new arrangement, focusing on the impact of the mandatory referral to al-Azhar (art. 4).

A New Procedure for State Court Personal Jurisdiction

Geoffrey P. Miller — Thu, 11 Apr 2013 07:24:27 PDT

This article explores a simple but fundamental reform of the rules governing the state court personal jurisdiction: Congress could grant federal district courts the full judicial power authorized by the Constitution coupled with discretion to dismiss, transfer or remand cases when it appears that some other forum is clearly more adequate for resolving the controversy. If implemented, this reform could improve the fairness and efficiency of civil justice in the United States.

“TO REGULATE,” NOT “TO PROHIBIT”: LIMITING THE COMMERCE POWER

Barry Friedman et al. — Wed, 03 Apr 2013 13:05:48 PDT

Today it is taken for granted that Congress’s power “to regulate . . . Commerce among the several States” includes the power to shut interstate markets down. That is why, for example, Congress is understood to have the power to ban the possession and use of marijuana, even though twenty states have expressed contrary preferences, either for the medicinal or recreational use of the drug. This Article argues that as a matter of constitutional history and theory both, this familiar assumption about congressional power is wrong. First, the Article demonstrates that the original understanding, which prevailed for over one hundred years, did not grant Congress the power to ban markets. Congress could pass “helper” statutes to facilitate state choices, and it could even ban particular goods (such as diseased cattle) “in service” of the interstate market; but it could not simply prohibit all commerce in products of which it disapproved. Second, the Article demonstrates that although this understanding changed following the 1903 Supreme Court decision in Champion v. Ames, none of the reasons supporting the change justify Congress possessing the power today. Finally, this Article examines theoretical justifications for congressional power grounded in law and economics and constitutional theory to suggest that the power “to regulate” interstate commerce should not be understood to include the power to prohibit it. The argument has implications for national bans on articles and activities such as interstate gambling, drugs, raw milk products and assault weapons.

In Search of the Most Adequate Forum: State Court Personal Jurisdiction

Geoffrey P. Miller — Fri, 29 Mar 2013 11:47:19 PDT

To what extent do the rules on state court personal jurisdiction distribute litigation to the forum that can resolve the dispute at the lowest social cost? It turns out that current rules do select the least-cost forum in many cases. However, three problems interfere with the goal of minimizing the costs of dispute resolution: (a) analysis under the Due Process Clause does not account for the full social costs of litigation; (b) federalism-based concerns sometimes allow state courts to adjudicate cases when they are not the most adequate forums; (c) institutional factors constrain the Supreme Court’s ability to prevent excessive exercises of state court jurisdiction. The dilemma of achieving forum efficiency within the existing legal and institutional framework helps to explain the confusion that pervades the Supreme Court’s state court personal jurisdiction cases.

How to Make Rules for Lawyers: The Professional Responsibility of the Legal Profession

Stephen Gillers — Thu, 21 Mar 2013 08:35:52 PDT

Using diverse lawyer regulatory issues that have arisen in the ABA, courts, and other venues across the last forty years, this Article examines in detail the methodology and styles of argumentation that lawyers use to support or defeat change. Regulatory issues addressed include non-lawyer ownership of law firms, fee-sharing with non-lawyers, collaborative law, and a requirement that fee agreements with clients be in writing, Recommendations for improvement in the process of rule making are offered.

Back to the Future: The Curious Case of United States v. Jones

Erin Murphy — Mon, 11 Mar 2013 09:59:14 PDT

Historically, the Supreme Court has couched the protections of the Fourth Amendment in the language of privacy and property. Yet expectations about freedom from government interference are no longer solely expressed in those terms. People routinely trade their privacy or property interests for complimentary e-mail services or faster toll crossings, and yet unfettered access to such information strikes many observers as contrary to the Fourth Amendment’s core values. If neither privacy nor property theories provide a constitutional basis for oversight, however, then what does?

In Jones, the Justices were confronted with just this dilemma. In response, as this Essay will show, roughly half of the Justices followed Justice Scalia into the shelter of originalism. The other half, led by Justice Alito, ventured a bit more boldly into the great unknown, but ultimately punted responsibility to a coordinate branch. Only Justice Sotomayor made a first attempt at tackling the problem, but she wrote alone. Regrettably, none of the opinions offered lasting guidance to lower courts, much less to law enforcement actors. Nevertheless, this essay argues that each is still notable for some aspect of what it conveys. Moreover, it closes by postulating that Jones is most interesting for what it didn’t say — press reports proclaiming "warrant needed for GPS tracking!" notwithstanding.