Yale Law Library - Reference Blog
May 2008 - Posts
Constitutional Limits on State's foreign affairs activities
Douglas Kysar (YLS) and Bernadette Meyler (Cornell) have a new paper up at SSRN. The paper is also published in the UCLA Law Review: Kysar, Douglas A. and Meyler, Bernadette A., "Like a Nation State"
UCLA Law Review, Vol.55, No. 6, 2008.
Here's the abstract:
Using California's self-consciously internationalist approach to
climate change regulation as a primary example, this Article examines
constitutional limitations on state foreign affairs activities. In
particular, by focusing on the prospect of California's establishment
of a greenhouse gas (GHG) emissions trading system and its eventual
linkage with comparable systems in Europe and elsewhere, this Article
demonstrates that certain constitutional objections to
extrajurisdictional linkage of state GHG emissions trading systems and
the response that these objections necessitate may be more complicated
than previously anticipated. First, successfully combatting the Bush
Administration's potential claim that state-level climate change
activities interfere with a federal executive position of withholding
binding domestic GHG reductions in advance of a multilateral agreement
including key developing nations, will require demonstrating that the
executive branch is not acting with congressional support and has,
furthermore, declared its position too informally to constitute an
exercise of any of the president's independent constitutional powers.
Second, state efforts to link GHG emissions trading systems with those
of other nations may well take them into territory abutting that which
is constitutionally impermissible under the foreign affairs and Foreign
Commerce Clause doctrines. Finally, state efforts to integrate with
other trading schemes or to otherwise protect the integrity of their
own trading schemes must be carefully constructed lest they invite
challenge as being discriminatory or overreaching, in light of more
conventional dormant Commerce Clause constraints on state regulation.
The Law Library of Congress hosted a talk by Australian barrister James Renwick discussing the UK and Australian legislative responses to terrorism since 9/11 and comparing their responses to the response of the United States.
Guns and the SCOTUS
The Law Library of Congress has created a page that pulls together material about the second amendment and the Court.
What paradigm for the gay rights movement?
In a new paper posted at SSRN and post to Balikinization, Professor Heather Gerken argues that equality and, therefore, the equal protection argument, not liberty is the proper and mpst promising paradigm for future gay rights litigation. Here is the abstract to the paper:
This essay - penned as a tribute to Larry Tribe - argues that equality, not liberty, represents the most promising framework for future gay-rights litigation. The paper begins by arguing that the stylistic differences between the two opinions in Lawrence v. Texas signal something important about the shortcomings of the liberty paradigm. As Larry Tribe has written, a liberty claim is won or lost based on what level of generality a court uses to describe it. We thus see Justice Kennedy, with his penchant for abstract prose, describing the case at a high level of generality in vindicating Lawrence's challenge to Texas' sodomy law. But note that the opinion's fluid prose ends precisely when the opinion moves from the general to the specific. Kennedy's high-flown abstractions are ill-suited to addressing facts on the ground. If Justice Kennedy is too abstract in his prose, Justice Scalia is too concrete. Scalia's groundedness makes him the wittiest dissent in cases involving sex, for everything funny about sex lies in our discomfort with the gap between the particular and the abstract. But Scalia's insistence that the case is about nothing more than the right to engage in a particular type of sex act ensures that his opinion, too, misses something important about what is at stake in Lawrence.
Having outlined the shortcomings of the two opinions, the remainder of the essay argues that equal protection, not liberty, is the right paradigm for future gay-rights litigation. Equal protection is pitched at the right level of generality; it captures what we are fighting about. Larry Tribe may find it easy to toggle between liberty and equality when writing about substantive due process. Like Justice Brandeis, he is "the master . . . of both microscope and telescope." In the parts of his work where he connects the Court's liberty decisions, he shows us constellations where the rest of us saw only a random collection of stars. In other parts of his work, he offers a granular view, describing the relationship between liberty and equality as a double helix. For everyday judges and lawyers, however, doctrinal analysis starts with doctrinal categories. It thus seems inevitable that Tribe's double helix will be split. And if courts must choose between these admittedly intertwined paths, we will get closer to the vistas Tribe describes if judges follow the path of equal protection, not liberty. That is because what is a stake in these debates is not whether all humans should enjoy a right, but whether gays and lesbians, in particular, should do so, and that is an idea better capture by the equal protection paradigm. Somewhere between Justice Kennedy's high-flown right to intimate relations and Justice Scalia's down-and-dirty discussion of sodomy is the status of the LGBT community. Equal protection begins with that issue while allowing the Court to write with a worthy tradition behind it.
Market Damages, Efficient Contracting and the Economic Waste Fallacy
is the title of a new paper by Alan Schwartz and Robert E. Scott (Columbia) posted on SSRN. Here's the paper and here's the abstract:
Market damages - the difference between
the market price for goods or services at the time of breach and the
contract price - are the best default rule whenever parties trade in
thick markets: they induce parties to contract efficiently and to trade
if and only if trade is efficient, and they do not create ex ante
inefficiencies. Courts commonly overlook these virtues, however, when
promisors offer a set of services some of which are not separately
priced. For example, a promisor may agree to pay royalties on a mining
lease and later to restore the promisee's property. In these cases,
courts compare the cost to the promisor of providing the service that
was not supplied to the increase in the market value of the
promisee/buyer's property had the promisor/seller performed. When the
cost of completion is large relative to the "market delta"- the
increase in market value - courts concerned to avoid "economic waste"
limit the buyer to the market value increase. This concern is
misguided. Since the buyer commonly prepays for the service at the ex
ante market price, a cost of completion award actually has a
restitution element - the prepaid price - and an expectation interest
element - the market damages. The failure to recognize the joint nature
of cost of completion damages causes courts to deny these damages more
frequently than they should. In this paper, we argue that the
unappreciated virtues of market based damages justify removing the
courts' discretion to deny them no matter how high they appear to be.
The rule that denies buyers market damages induces excessive entry into
these service markets. Moreover, buyers are under-compensated when they
prepay and cannot recover the price paid for the breached services but
instead are restricted to the market delta. As a result, too few buyers
contract ex ante for the relevant service and surplus maximizing
contracts are forgone. Finally, sellers often can take actions in the
interim between making the contract and the time for performance of the
service that would reduce the service cost to manageable proportions.
Sellers are less likely to take these precautions if they are required
to pay buyers only the market delta rather than the full performance
cost that their actions could have avoided.
Another fascinating paper from Professor Hathaway, "The Continuing Influence of the New Haven School." Originally published in 32(2) Yale Journal of International Law in 2007. Here is the abstract:
This Commentary examines the deep and
abiding influence of what has been called the New Haven School of
international law. It considers the connection between the past and the present the ideas first formulated by Myres S. McDougal and Harold D. Lasswell more than a half-century ago, and those, both near and far, whose work they have influenced.
Paper on SSRN
Professor Hathaway has posted a paper originally published in the journal International Organization in 1998 (v. 52, no. 3) on SSRN, entitled "Positive Feedback: The Impact of Trade Liberalization on Industry Demands for Protection".
Here is the abstract:
This article proposes a theory of
dynamic industry preferences and strategies to explain variation in
industries' demand for trade protection over time. This theory shows
how the characteristics of industries affect their demand for trade
policy and how, in turn, trade policy transforms industry
important implication of this theory is that trade liberalization tends
to reduce, rather than increase, industry demand for protection over
the long term. The article begins by developing a static model of
industry decision making that illustrates how producers faced with a
reduction in trade barriers weigh the costs and benefits of political
action and economic adjustment. It then explains how the strategic
choices of an industry are determined by key industry characteristics
that evolve over time in response to changes in trade policy and market
conditions. In particular, it demonstrates that reductions in trade
barriers may have a positive feedback effect that dampens rather than
amplifies domestic protectionist sentiment. To test this model, the
article examines the dramatic postwar transformation of three
industries that have historically demanded and received extensive
import protection: the footwear, textile, and apparel industries. The
article concludes with an assessment of the model and a discussion of
its possible implications for our understanding of the politics of
Review of Kahn, Out of Eden: Adam and Eve and the Problem of Evil
Nice review in the Times Literary Supplement by John Habgood, the former Archbishop of York:
A book which begins with the sentence “Evil makes us Human” must surely compel
attention. This is no ordinary account of what is usually meant by the
problem of evil, where the main emphasis is on justifying the ways of God to
man. Instead, Paul W. Kahn’s aim is to explore the nature of evil itself. He
interprets it, not just as doing or experiencing bad things, but as “a way
of being in the world”. Evil, he claims, is about making ourselves the
source of our own meaning, a meaning inevitably negated by death, the
certainty of which gives urgency and depth to the way life is lived. It is
this consciousness of our mortality, and the refusal to accept its
implications, which can lead to the worship of false gods. Ascribing
ultimate value to what is essentially nothing at all results in what he
calls “a pathology of the will”. Personal evil is essentially about
wilfulness rather than reason, nor can it be subsumed within our rational
understanding. Evil in this sense, as part of our humanity, is not a
fashionable concept, but we have good reasons to recognize it, not least in
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Three recent law review articles by members of the faculty:
Ian Ayres and Gideon Parchomovsky, Tradable Patent Rights, 60 Stan. L. Rev. 863 (2007)
Daniel Markovits, Luck Egalitarianism and Political Solidarity, 9 Theoretical Inquiries L. 271 (2008)
Judith Resnik, No Daubert Hearing Necessary: The Extraordinary Expertise of
Margaret Berger, 16 J.L.
& Pol'y 6 (2007)
Law Day, May 1st 2008
The theme of this year's Law Day, "The Rule of Law:
Foundation for Communities of Opportunity and Equity," recognizes the
fundamental role that the rule of law plays in preserving liberty in our
Nation and in all free societies. View President Bush's proclamation here.
Law Professor Accuses Students of Defamation
By LYNNLEY BROWNING, New York Times.
Published: May 1, 2008.
At the University of Arkansas in Little
Rock, a law professor has sued two of his students, alleging that they
defamed him by unfairly describing him as a racist. Read more here