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The Case Against Equity in American Contract Law
Get PDFThe American common law of contracts appears to direct courts to decide contract disputes by considering two opposing points of view: the ex ante perspective of the parties’ intent at the time of formation, and the ex post perspective of justice and fairness to the parties at the time of adjudication. Despite the black letter authority for both perspectives, the ex post perspective cannot withstand scrutiny. Contract doctrines taking the ex post perspective – such as the penalty, just compensation, and forfeiture doctrines – were created by equity in the early common law to police against abuses of the then prevalent penal bond. However, when the industrial revolution pushed courts to accommodate fully executory agreements, and parties abandoned the use of penal bonds, the exclusively ex ante focus of the new contract law that emerged rendered the ex post doctrines obsolete. While initially intended to do justice between the parties, if used today these doctrines perversely and unjustly deny parties contractual rights that were bargained for in a free and fair agreement. Yet judges continue to recognize the ex post doctrines, even as they struggle to reconcile them with respect for the parties’ intent. Although infrequently applied, the ex post doctrines are far from dead letter. The penumbra of uncertainty they cast over contract adjudication continues to undermine contracting parties’ personal sovereignty. The only case for continuing to recognize these equitable interventions, therefore, must turn on whether they serve a new valid purpose. We consider and reject the possible purposes of paternalism and anti-opportunism suggested by contemporary pluralist scholars. In our view, the criteria governing theories of legal interpretation support the interpretation of contract law as exclusively serving personal sovereignty rather than any pluralist interpretation. Under its best interpretation, contract law has no place for the ex post perspective
The Contact Group on Somali Piracy: An Unlikely Model for Protecting the Environment?
Get PDFInternational environmental law covers a wide range of subjects, is extremely detailed, and evolves very rapidly. No wonder it is challenging for practitioners to keep up with developments. An expert in marine pollution regimes may be unaware of the latest initiatives on forest conservation. Given how hyper-specialized the climate world has become, an expert on mitigation may be only mildly aware of recent advances in adaptation. And neither may be in a position to keep up with innovations in international law more broadly.
Deep knowledge has its advantages, but also some drawbacks. When we are faced with the need to address a new or emerging issue, our set of tools may be limited by our narrow specialties; we reach for solutions that are familiar but not necessarily the most effective. Moreover, when we do come up with an interesting solution to address a specific problem, it tends to remain hidden from those dealing with other problems – even if it might be useful to them
Legal Levers For Cleaner Air in Kolkata: An Assessment of Local Legal Authority
Get PDFAir pollution in India results in significant adverse health and environmental outcomes. Only 16% of the population lives in an area that meets India’s national air quality standards, and less than 1% lives in an area that meets international guidelines for air quality. In 2015, air pollution resulted in 1.1 million deaths nation-wide. If the World Health Organization’s air quality standard was met, Indian life expectancy would increase by 5.2 years. The state of West Bengal, wherein Kolkata is located, faces some of the highest exposures to air pollution in the country, making local interventions there critical.
In recent years, the central government has taken steps to improve air quality, creating, for example, the National Clean Air Programme in 2019. Kolkata was the first city in West Bengal to be named out of compliance with national air quality standards under the program, even after the Air Quality Monitoring Committee developed a clean air plan for Kolkata in 2018. Despite some developments, including actions to curb one of the Kolkata’s lead causes of air pollution by banning open burning of coal and firewood, the city still has steps to take to enhance air quality
Climate Change, Coming Soon to a Court Near You – Report Four: International Climate Change Legal Frameworks
Get PDFIn 2020, the Paris Agreement is the pinnacle of international law on climate change. It orchestrates global climate action over the coming decades. Countries agreed to limit global warming to well below 2ºC above preindustrial times, closer to 1.5ºC. Humankind will only achieve this temperature goal if we domesticate our international climate commitments. Judges have proven to be instrumental in holding their governments accountable for their climate pledges. Report Four of this four-part series explores the nature of the Paris Agreement, its history, and the framework of international instruments and international legal principles that support global and domestic climate action
Tech Dominance and the Policeman at the Elbow
Get PDFOne school of thought takes much of law and the legal system as essentially irrelevant to the process of technological evolution. This view takes as axiomatic that the rate technological change is always accelerating, that any firm or institution dependent on a given technology is therefore doomed to a rapid obsolescence. Law, at best, risks interfering with a natural progression toward a better technological future, hindering “the march of civilization.”
This paper discusses the historical role of antitrust investigation in changing the course of technological development by focusing on the example of the IBM litigation (1969 - 1984). While widely derided and seen as a failure, this essay challenges the conventional wisdom and suggests, with the benefit of decades of hindsight, that the IBM lawsuit and trial, despite never reaching a verdict, actually catalyzed numerous transformational developments key to the growth and innovation of the computing industries
Principles of Home Rule for the Twenty-First Century
Get PDFThe National League of Cities’ “Principles of Home Rule for the Twenty-First Century” updates the American Municipal Association’s 1953 “Model Constitutional Provisions for Municipal Home Rule.” The AMA approach was widely adopted, but those provisions are now over 65 years old and intervening social, demographic, economic, and political changes necessitates a new approach to the legal structure of state-local relations. The NLC’s approach is organized around four basic principles, which are cashed-out in a model constitutional home rule provision, with commentary. The first principle states that a state’s law of home rule should provide local governments the full capacity to govern to the limits of state law across the entire range of subject matters. The second principle states that home rule should guarantee local fiscal authority and ensure local fiscal stability. The third principle embodies a presumption against state preemption of local laws, authorizing such preemption only when expressly stated and when the displacement of local authority is narrowly tailored to achieve a substantial state interest. The fourth principle states that local governments should have authority to manage their own democratic processes and structure of governance and should be able to act without fear of retaliation for the exercise of local authority.
These principles are meant to readjust a state-local relationship that has recently become heavily tilted toward the exercise of state power. In many states, preemptive laws and judicial decisions have reduced existing state constitutional grants of home rule to a narrowly constricted sphere. Preemptive and punitive state laws are undermining the original purpose of home rule, as embodied in the 1953 AMA provisions, to provide for meaningful self-government at the local level
The Paradox of Legal Training and Leadership: A Conversation between Akilah Folami and Susan Sturm
Get PDFProfessor Akilah Folami: Welcome and thank you for coming. I am eager to engage in this opening exchange with Susan Sturm today in hopes that it will help bring to surface some of the issues that undergird the conversations planned for today in the panels. So let us begin. Susan has been teasing out a series of paradoxes that she argues develops in the tensions built into lawyer-leadership, i.e., legal training and leadership development. Her work on these lawyer-leadership paradoxes grows out of her other work that is related to the theme of this conference: Leading Differently Across Difference. She will briefly discuss one or more of these paradoxes and then she and I will build upon them in what we hope will be a very organic conversation that has been going on between us before now.
Professor Susan Sturm: I have been writing, teaching, and working with organizations that have been struggling with how to address bias in their systems: law schools, court systems, community colleges, business schools, and liberal arts colleges. These organizations have often gotten stuck in attempts to do this work of dismantling bias. I argue that the stuck-ness is really, in part, a function of grappling with contradictory ideas and contradictory challenges that they are trying to resolve but that cannot be resolved but have to be held together nevertheless. These are paradoxes. Paradoxes are two conflicting and opposing ideas that actually also are both true and have to be pursued together
Turkey vs. Ahmet Tuna Altınel
Get PDFAhmet Tuna Altınel is a Professor of Mathematics at the University of Lyon-1 in France. During a visit to Turkey, his passport was seized. When he inquired as to its whereabouts, he was arrested on suspicion of “propaganda for a terrorist organization,” soon thereafter charged with “membership in a terrorist organization,” and detained for nearly three months. The predicate for this charge was social media posts inviting attendance at an event in France entitled “Cizre — the Story of a Massacre” and interpretation assistance Mr. Altınel provided at the event. After his eventual release from pre-trial detention, the prosecution again reclassified the charge to “propaganda for a terrorist organization” — a set of changes defense counsel asserted had been in order to render Mr. Altınel’s pre-trial detention more likely (since “membership in a terrorist organization” carries a presumption of pre-trial detention).
The pre-trial process was marred by numerous violations of Mr. Altınel’s rights. First, the Turkish authorities violated Mr. Altınel’s right to liberty by ordering his detention prior to trial despite a lack of evidence that he had committed the crime charged. Further, the charges against him were based on protected expression, and thus his detention was arbitrary.
Second, the Governor of Balıkesir stated, prior to trial, that “it was determined” that Mr. Altınel had “organized an event for the PKK/KCK armed terrorist organization.” This violated Mr. Altınel’s right to be presumed innocent by assuming facts that were to be proven at trial.
Further, while the trial itself generally comported with international standards, the facts show that there was no lawful basis for the decision by the Turkish authorities to prosecute the case, given that the conduct charged was protected by the right to freedom of expression. This Report therefore concludes that the prosecution was pursued in bad faith, in violation of Article 18 of the European Convention on Human Rights
Federal Court Sets August Trial Date for Standing Rock Civil Rights Lawsuit
Get PDFNew York, September 25, 2020 — Judge Daniel M. Traynor (U.S. District Court for North Dakota) has set aside two weeks for trial starting August 16, 2021 for Thunderhawk v. County of Morton, a federal civil rights lawsuit challenging the five-month discriminatory closure of Highway 1806 at the height of the NoDAPL movement at Standing Rock. The trial was set at a recent status conference before Magistrate Judge Charles S. Miller (U.S. District Court for North Dakota), at which swift discovery deadlines were also imposed
Introduction: The Roles of the Restatements in U.S. Foreign Relations Law
Get PDFThis introductory chapter serves as a foreword for the volume. It sketches the history of past restatements and the evolution of the latest one. The first (confusingly called Second) Restatement of the Foreign Relations Law of the United States brought widespread attention to the term “foreign relations law.” It staunchly defended the proposition that foreign relations, no matter how imbued with discretion and prerogative, still must rest on law. The Third Restatement, prepared during a period of what to many seemed constitutional retrenchment and a loosening of judicial supervision over public life, offered a robust defense of the proposition that, “In conducting the foreign relations of the United States, Presidents, members of Congress, and public officials are not at large in a political process; they are under law.” Moreover, it insisted that the judiciary, as much as the executive and Congress, creates and enforces this law. To the extent that the Third Restatement rested its claims on its view of the state of customary international law, other influential actors pushed back. The Fourth Restatement revisits the Third’s claims, especially about the central role of the judiciary, in light of the evolution of both U.S. and international law and practice