Comparative Law
The Lost English Roots of Notice-and-Comment Rulemaking
Using new archival research, this Article argues that notice-and-comment rulemaking emerged from a series of American transplantations of English rulemaking procedures. Yet, as this Article emphasizes, during the 1930s and 1940s Americans only partially adopted the English framework. The rejection of laying procedures implicates the legitimacy of our rulemaking system.
Self-Protection in World Society: Reformulating the Protective Principle in International Law
Aggressive applications of extraterritoriality under the protective principle in international law pose serious threats to states and individuals. This Note tracks the rise of protective-principle jurisdiction around the world. It then provides a reformulation of the principle to better cabin it within foundational doctrines of international law.
The Church’s Treaties: How the Holy See Makes and Shapes International Law
The Catholic Church has concluded close to two hundred treaties in the last sixty years with nations across the globe. Many of these agreements integrate Church doctrine into state legal systems at the expense of LGBTQ rights. This Note unearths this vast treaty regime—and suggests ways to challenge it.
Judicial Legitimacy and Federal Judicial Design: Managing Integrity and Autochthony
This Article argues that the sociological legitimacy of judicial institutions in federal systems rests on both integrity and autochthony. Through theoretical and comparative inquiry, we explore the ways in which initial federal constitutional design, as well as ongoing legislative and judicial management, construct and reconstruct the integrity-autochthony balance.
Lessons from the Suffrage Movement in Iran
The women’s suffrage movement in Iran achieved the vote in 1963, several decades after women in the United States. The challenges and opportunities in Iranian women’s fight for equal rights offer insight into the complex and often fraught politics of calling for women’s rights and participation in a non-Western context.
Privacy and Security Across Borders
This Essay analyzes the impetus and results of recent initiatives by the United States, European Union, and Australia to regulate law enforcement access to data, highlights their promise and their limits, and offers a way forward that protects speech, privacy, and other rights in the process.
Participation, Equality, and the Civil Right to Counsel: Lessons from Domestic and International Law
122 Yale L.J. 2260 (2013). Domestic efforts to establish a right to civil counsel by drawing narrow analogies to Gideon v. Wainwright have met with limited success. In contrast, two principles drawn from international jurisprudence—the human right to “civic participation” and the concept of “equality of arms”—resonate with emerging U.S. jurisprudence in both state and federal courts and suggest new directions for domestic advocacy on the civil right to counsel. First, the human right to civic participation, incorporating access to justice, underscores the democratic values at stake when individuals are not able to fully participate in civil judicial processes because of lack of counsel. Second, the concept of equality of arms hones in on the source of that democratic distortion—inequality—and sets a baseline for ensuring acceptable procedural protections. Strengthening considerations of participation and equality within the constitutional due process calculus would position courts to examine the broader class-based impacts of the denial of civil counsel in cases such as mortgage foreclosures or insurance redlining. Rather than conduct a case-by-case review, which slows litigation, creates uncertainty, and deters litigants from coming forward, U.S. courts viewing the civil right to counsel through the lenses of civic participation and equality of arms could act more broadly to mitigate the classbased impacts of procedural inequality in addition to the case-specific impacts. This approach, grounded in democratic values rather than need, does not ignore the lessons of Gideon, but draws on its more subtle themes—themes that have sometimes been eclipsed by a focus on liberty interests.
Unveiling Inequality: Burqa Bans and Nondiscrimination Jurisprudence at the European Court of Human Rights
122 Yale L.J. 1089 (2013).
Congress’s Authority To Enact the Violence Against Women Act: One More Pass at the Missing Argument
My “missing argument” invokes the structure of the Supreme Court’s decision in Jones v. Alfred H. Mayer Co. to explain congressional authority to enact the civil rights provisions of the Violence Against Women Act. Like the “relics” of slavery, patterns of violence against women trace to decades of state-sponsored discrimination against women, and Congress has the authority under Section 5 of the Fourteenth Amendment to take steps to repair that unhappy legacy.
Outcasting, Globalization, and the Emergence of International Law
**This is the second in a series of responses to Oona Hathaway and Scott J Shapiro's recent article, Outcasting, which appeared in the November issue of YLJ. For Joshua Kleinfeld's response, see here.** This Essay argues that we have been undergoing a profound sociocultural transformation over the last several centuries, which relates to the emergence of international law. This transformation is every bit as fundamental as those we once went through when transitioning from hunter-gatherer forms of life (which did not yet have legal systems or engage a distinctive sense of legal obligation) to more sedentary forms of agricultural life (with larger population densities, incipient domestic legal institutions, and—ultimately—an emergent distinction between morality and law). The primary mechanism that has been supporting this transformation is “outcasting”—as Oona Hathaway and Scott Shapiro have recently defined the term in their Yale Law Journal article of the same name. This Essay argues that outcasting provides the evolutionary stability conditions for a distinctive and emergent sense of international legal obligation in us. This shared sense of obligation is one of the basic preconditions for a genuine de facto system of international law—a fact that has important normative implications for how to evaluate international law.
Consumerism Versus Producerism: A Study in Comparative Law
117 Yale L.J. 340 (2007). The spread of American-style “consumerism” is a burning global issue today. The most visible symbols of American consumerism, large enterprises like Wal-Mart and McDonald’s, attract vitriolic attacks in many parts of the world. Political conflict in Europe (and elsewhere) turns largely on the question of whether legal systems everywhere must inevitably follow the American model. Despite the global importance of the consumerism debates, though, comparative lawyers have found little to say. In an effort to develop an analytic comparative law approach to the problem of global consumerism, this Article proposes to revive an analytic distinction that was common in the 1930s: the distinction between “consumerism” and “producerism.” A producerist legal order tends to revolve around rights and interests on the supply side of the market: it focuses on the interest of some class of producers or distributors (such as workers, small shopkeepers, or the competitors in a given industry). A consumerist legal order, by contrast, tends to focus on rights and interests on the demand side of the market—in particular, on the consumer economic interest, understood primarily as an interest in competitive prices. Producerist legal orders can take forms quite different from consumerist ones, both when it comes to economic regulation in the law of antitrust and retail and when it comes to fundamental conceptions of the nature of rights. The distinction between consumerism and producerism involves some real complexities, and it must be used with care. Nevertheless, this Article argues, it is of fundamental importance for classifying and analyzing legal systems, and in particular for understanding basic and persistent differences between continental Europe and the United States.
The Constitution Outside the Constitution
117 Yale L.J. 408 (2007). Countries lacking a single canonical text define the “constitution” to include all laws that perform the constitutive functions of creating governmental institutions and conferring rights on individuals. The British Constitution, for example, includes a variety of constitutive statutes, such as the Magna Carta and the Parliament Acts. This Article proposes a thought experiment: what if we defined the U.S. Constitution by function, rather than by form? Viewed from this perspective, “the Constitution” would include not only the canonical document but also a variety of statutes, executive materials, and practices that structure our government. What these constitutive materials lack is a third characteristic shared by some (but not all) constitutions: formal entrenchment against legal change. Decoupling the entrenching function from the constitutive functions offer a relatively simple answer to one of the most important problems in constitutional theory: how do we explain the evident fact that the structure of our government and the rights of the people have changed pervasively since the Founding, in ways that are simply not reflected in Article V amendments to the canonical text? The answer is that the constitutional order can change in this way because most of it was never entrenched in the canonical text to begin with. Most of the salient changes—the growth of the administrative state, the proliferation of individual entitlements—are changes to our “constitution outside the constitution” that are neither mandated nor forbidden by the canonical document. This functional account of constitutionalism also has implications for constitutional doctrine and scholarship. It tends to undermine doctrinal prescriptions grounded in a sharp dichotomy between constitutional and statutory claims, and it suggests that basic constitutional values—such as federalism or concern for individual rights—are relevant to statutory construction. Finally, the functional account suggests a broader set of concerns for constitutional law teaching and scholarship.
Cleaning House: Congressional Commissioners for Standards
117 Yale L.J. 165 (2007).
Designing a Constitution-Drafting Process: Lessons from Kenya
This Note examines Kenya’s recent constitution-writing experience as a case study for designing constitution-drafting processes in emerging democracies. Eight years after Kenya’s constitutional review process began, and after a highly acrimonious drafting period, Kenyans roundly defeated a proposed new constitution in a national referendum. This Note describes Kenya’s experience and considers six lessons on designing a constitution-drafting process. It then proposes how a constitution-drafting process in a country like Kenya might have been more effectively designed. 116 Yale L.J. 1824 (2007).
On Target? The Israeli Supreme Court and the Expansion of Targeted Killings
116 Yale L.J. 1873 (2007).
Law's Migration: American Exceptionalism, Silent Dialogues, and Federalism's Multiple Ports of Entry
115 Yale L.J. 1564 (2006) Legal theorists are engaged in understanding the legitimacy of techniques by which principles of rights-holding travel across borders. Sovereigntists in the United States object to that migration. The history of both protest about and the incorporation of "foreign" law provides important lessons for contemporary debates. Through examples from conflicts about slavery, the rights of women, and the creation of the United Nations, I chart the anxiety occasioned when American law interacts with human rights movements. At times, through silent absorption rather than express citation, some of the "foreign" sources become lost in translation, and the new rights become constitutive elements of "American" identity. To conceive of these debates as engaging only questions of national boundaries is, however, to miss the reliance on federalism as a justification for declining to participate in transnational rights work. Yet America's federalist structure also serves as a path for the movement of international rights across borders. As illustrated by the adoption by mayors, city councils, state legislatures, and state judges of transnational rights stemming from the U.N. Charter, the Convention to Eliminate All Forms of Discrimination Against Women (CEDAW), and the Kyoto Protocol on global warming, the debate about transnationalism is deeply democratic, with significant popular engagement reframing American norms. Such local government actions require revisiting legal doctrines that presume the exclusivity of national power in foreign affairs--as that which is "foreign" is domesticated through several routes.
Income Tax Discrimination and the Political and Economic Integration of Europe
115 Yale L.J. 1186 (2006) In recent years, the European Court of Justice (ECJ) has invalidated many income tax law provisions of European Union (EU) member states as violating European constitutional treaty guarantees of freedom of movement for goods, services, persons, and capital. These decisions have not, however, been matched by significant EU income tax legislation, because no EU political institution has the power to enact such legislation without unanimous consent from the member states. In this Article, we describe how the developing ECJ jurisprudence threatens the ability of member states to use tax incentives to stimulate their domestic economies and to resolve problems of international double taxation. We conclude that the ECJ approach is ultimately incoherent because it is a quest for an unattainable goal in the absence of harmonized income tax bases and rates: to eliminate discrimination based on both origin and destination of economic activity. We also compare the ECJ's jurisprudence with the resolution of related issues in international taxation and the U.S. taxation of interstate commerce, and we consider the potential responses of both the European Union and the United States to these developments.
Evolution and Chaos in Property Rights Systems: The Third World Tragedy of Contested Access
115 Yale L.J. 996 (2006) According to conventional law-and-economics theory, private property rights tend to evolve as resource values rise. This optimistic assessment fails to explain the development of open access in many Third World property systems. Indeed, while the evolution of property has been studied extensively, scholars have paid relatively little attention to the evolution of open access itself. This Essay presents a theoretical analysis of open access that focuses on contested institutional interactions between laws, norms, and agreements. It argues that rising resource values are more likely to lead to open access than private property when the institutional environment is characterized by competing legal and norm-based systems. The Essay concludes that to understand property failures in contemporary Third World circumstances, we must move beyond conventional evolutionary analysis to taxonomic formulations based on the nature and interaction of property enforcement arrangements.