NELLCO Legal Scholarship Repository Copyright (c) 2013 NELLCO All rights reserved. http://lsr.nellco.org Recent documents in NELLCO Legal Scholarship Repository en-us Tue, 18 Jun 2013 01:34:15 PDT 3600 The BP Oil Spill Settlement and the Paradox of Public Litigation http://lsr.nellco.org/nyu_lewp/343 http://lsr.nellco.org/nyu_lewp/343 Wed, 12 Jun 2013 08:19:29 PDT The streamlined administrative program that BP set up to pay claims arising out of the Deepwater Horizon Oil spill—the Gulf Coast Claims Facility (GCCF)—promised a significant transaction-cost savings over litigation in the public court system. At least in theory, that savings should have worked to the benefit of BP and claimants alike, freeing up money that would otherwise have gone to lawyers and other litigation costs to fund claimants’ recoveries. But a comparison of the GCCF to the class action settlement that replaced it reveals that the class settlement will result in greater payments to claimants. Paradoxically, the dispute resolution system with the higher built-in transaction costs appears superior. We offer some hypotheses for why this might be the case. Our central claim is that claimants did better under the higher-cost class action settlement because it allowed them to offer the defendant something it valued—a greater degree of finality than the GCCF could ever provide—in exchange for a “peace premium.” And we analyze some of the features of the public system of class action litigation that enable parties to obtain a greater degree of closure than a purely private dispute resolution system like the GCCF, while at the same time providing guarantees of transparency, consistency, and equitable treatment of absentees.

]]> Samuel Issacharoff et al. Juvenile Criminal Record Confidentiality http://lsr.nellco.org/nyu_plltwp/403 http://lsr.nellco.org/nyu_plltwp/403 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.

]]> James B. Jacobs Comparative Wrongful Dismissal Law: Reassessing American Exceptionalism http://lsr.nellco.org/nyu_plltwp/402 http://lsr.nellco.org/nyu_plltwp/402 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.

]]> Samuel Estreicher et al. Comparative Wrongful Dismissal Law: Reassessing American Exceptionalism http://lsr.nellco.org/nyu_lewp/342 http://lsr.nellco.org/nyu_lewp/342 Tue, 04 Jun 2013 07:58:48 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.

]]> Samuel Estreicher et al. Contracts as Technology http://lsr.nellco.org/nyu_lewp/341 http://lsr.nellco.org/nyu_lewp/341 Thu, 30 May 2013 07:00:14 PDT If technology means, “useful knowledge about how to produce things at low cost", then contracts should qualify. Just as mechanical technologies are embodied in blueprints, technologies of contracting are embodied in contractual documents that serve as, “blueprints for collaboration". This Article analyzes innovations in contractual documents using the same kind of framework that is used to analyze other kinds of technological innovation. The analysis begins by laying out an informal model of the demand for and supply of innovative contractual documents. The discussion of demand emphasizes the impact of innovations upon not only each party’s incentives to collaborate efficiently, but also upon reading costs and litigation costs. The analysis of supply considers both the generation and dissemination of innovations and emphasizes the importance of cumulative innovation, learning by-doing, economies of scale and scope, and trustworthiness.

Recent literature has raised concerns about the extent to which law firms produce contractual innovations. In fact, a wide range of actors other than law firms supply contractual documents; including end users of contracts, specialized providers of legal documents, legal database firms, trade associations, and academic institutions. This article discusses the incentives and capabilities of each of these potential sources of innovation. It concludes by discussing potential interventions such as: (1) enhancing intellectual property rights, (2) relaxing rules concerning the unauthorized practice of law and, (3) creating or expanding publicly sponsored clearinghouses for contracts.

]]> Kevin E. Davis Of 'Singles' Without Baseball: Corporations as Frozen Relational Moments http://lsr.nellco.org/nyu_lewp/340 http://lsr.nellco.org/nyu_lewp/340 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.

]]> Burt Neuborne Of 'Singles' Without Baseball: Corporations as Frozen Relational Moments http://lsr.nellco.org/nyu_plltwp/401 http://lsr.nellco.org/nyu_plltwp/401 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.

]]> Burt Neuborne The Federal Right to an Adequate Education http://lsr.nellco.org/nyu_plltwp/400 http://lsr.nellco.org/nyu_plltwp/400 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.

]]> Barry Friedman et al. A PROCESS ACCOUNT OF THE ENDOWMENT EFFECT: VOLUNTARY DEBIASING THROUGH AGENTS AND MARKETS http://lsr.nellco.org/nyu_plltwp/399 http://lsr.nellco.org/nyu_plltwp/399 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.

]]> Jennifer Arlen et al. With Untired Spirits and Formal Constancy: Berne-Compatibility of Formal Declaratory Measures to Enhance Title-Searching http://lsr.nellco.org/columbia_pllt/9206 http://lsr.nellco.org/columbia_pllt/9206 Fri, 10 May 2013 12:47:17 PDT Formalities are back in fashion. Their acolytes fall into two camps, reflecting their different objectives. For formalities, which we shall define as conditions on the existence or enforcement of copyright, can divest authors of their rights, or instead enhance authors’ exploitation of their works by alerting their audiences to the authors’ claims. For one camp, formalities’ confiscatory consequences, once perceived as barbaric, are to be celebrated. A second camp enlists formalities to populate not the public domain, but the public record. Notice, registration and recordation, as declaratory measures, inform the public of the author’s claims and, by facilitating rights-clearance, help the author disseminate and derive compensation from her work. I prefer to call title-searching information “declaratory measures” rather than “formalities” because only “formalities,” in their Berne Convention sense, entail the loss of copyright or the limitation of basic remedies. The aspirations of the second camp tend toward information rather than confiscation, but many may be concerned that only the threat of the latter will impel provision of the former.

The perceived need to give title-searching measures teeth by penalizing authors who fail to declare or to register their claims allows the rhetoric of reformalization to conflate formalities’ two distinct goals. Recognizing that the “good cop” face of formalities tied to title-searching may attract more followers than the “bad cop” function of expropriating authors, some reformalizers may offer the kinder, gentler rationale of reducing search costs in support of declaratory obligations whose non fulfillment will confiscate the copyright. Not all the laments about high transactions costs, however, withstand analysis. For even were authors easily found and negotiations simplified, the real problem for many enthusiasts of formalities is having to transact at all, when in their view the object of the proposed translation should not, or should no longer, be protected in the first place.

This paper addresses the Berne Convention’s prohibition on the imposition of “formalities” on the “enjoyment or exercise” of copyright, and the compatibility with that cornerstone norm of declaratory measures to enhance title-searching. In the Berne context, “enjoyment” means the existence and scope of rights; “exercise” means their enforcement. Voluntary provision of title-searching information on a public register of works and transfers of rights is fully consistent with Berne, and should be encouraged. But may a member State impose sanctions or disabilities for failure to supply that information?

The first Part of this paper will address conditions on the existence or enforcement of rights. I conclude that “formalities” prerequisite to the initial attachment or persistence of protection, or that limit the scope of minimum rights or the availability of minimum remedies, violate the norms of Berne and subsequent multilateral instruments. By contrast, it may be permissible to condition “Berne+” subject matter, rights, or remedies on compliance with declaratory measures. The “Berne+” path, however, risks descending into controversies of characterization, as one contender’s “plus” proves another’s “minimum” norm.

The second Part of this paper will consider declaratory measures regarding ownership of rights under copyright. The Berne Convention generally does not cover copyright ownership, and one may urge that conditions on who may enjoy or exercise rights are a matter distinct from disabilities imposed on existence or enforcement in general. Accordingly, sanctions against the failure to provide information pertaining to the transfer of rights should be Berne-compatible. Specifically, I propose making the validity of a transfer of copyright depend on the transferee’s recordation in the Copyright Office of “a note or memorandum of the transfer” containing sufficient information to permit third parties to ascertain who owns what rights in the work. The second Part then endeavors to resolve some of the practical problems a mandatory recordation of transfer obligation might engender. These include time limits for recording the transfer, gaps in the title-searching record, and effect on transfers of rights in non-U.S. works when the United States is one of the territories covered by the grant.

]]> Jane C. Ginsburg A PROCESS ACCOUNT OF THE ENDOWMENT EFFECT: VOLUNTARY DEBIASING THROUGH AGENTS AND MARKETS http://lsr.nellco.org/nyu_lewp/339 http://lsr.nellco.org/nyu_lewp/339 Fri, 10 May 2013 12:44:17 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.

]]> Jennifer Arlen et al. Economic Analysis of Medical Malpractice Liability and its Reform http://lsr.nellco.org/nyu_lewp/338 http://lsr.nellco.org/nyu_lewp/338 Thu, 09 May 2013 07:46:55 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.

]]> Jennifer Arlen Economic Analysis of Medical Malpractice Liability and its Reform http://lsr.nellco.org/nyu_plltwp/398 http://lsr.nellco.org/nyu_plltwp/398 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.

]]> Jennifer Arlen REALITY CHECK: HOW MALPRACTICE FACTS CHANGED MALPRACTICE LIABILITY THEORY http://lsr.nellco.org/nyu_plltwp/397 http://lsr.nellco.org/nyu_plltwp/397 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.

]]> Jennifer Arlen REALITY CHECK: HOW MALPRACTICE FACTS CHANGED MALPRACTICE LIABILITY THEORY http://lsr.nellco.org/nyu_lewp/337 http://lsr.nellco.org/nyu_lewp/337 Wed, 01 May 2013 11:51:06 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.

]]> Jennifer Arlen Oversight of national security secrecy in the United States http://lsr.nellco.org/nyu_plltwp/396 http://lsr.nellco.org/nyu_plltwp/396 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.

]]> Stephen J. Schulhofer How to Talk About the Constitution http://lsr.nellco.org/nyu_plltwp/395 http://lsr.nellco.org/nyu_plltwp/395 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.

]]> Sara Aronchick Solow et al. Enforcement Redundancy and the Future of Immigration Law http://lsr.nellco.org/nyu_plltwp/394 http://lsr.nellco.org/nyu_plltwp/394 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.

]]> Adam B. Cox NOTICE AND THE NEW DEAL http://lsr.nellco.org/nyu_plltwp/393 http://lsr.nellco.org/nyu_plltwp/393 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.

]]> Mila Sohoni (Re)Arrangement of State/Islam Relations in Egypt’s Constitutional Transition http://lsr.nellco.org/nyu_plltwp/392 http://lsr.nellco.org/nyu_plltwp/392 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).

]]> Gianluca Paolo Parolin