Conflict of Laws

Sosa, Customary International Law, and the Continuing Relevance of Erie

Vol. 120 No. 4 This Article analyzes the Supreme Court’s 2004 decision in Sosa v. Alvarez-Machain against the backdrop of the post-Erie federal common law. The Article shows that, contrary to the assertion of some commentators, Sosa did not embrace the “modern position” that customary international law (CIL) has the status of self-executing federal common law to be applied by courts without any need for political branch authorization and, indeed, is best read as rejecting that position. Commentators who construe Sosa as embracing the modern position have confounded the automatic incorporation of CIL as domestic federal law in the absence of political branch authorization (that is, the modern position) with the entirely different issue of whether and to what extent a particular statute, the Alien Tort Statute (ATS), authorizes courts to apply CIL as domestic federal law. The Article also explains how CIL continues to be relevant to domestic federal common law despite Sosa’s rejection of the modern position. The fundamental flaw of the modern position is that it ignores the justifications for, and limitations on, post-Erie federal common law. As the Article shows, however, there are a number of contexts in addition to the ATS in which it is appropriate for courts to develop federal common law by reference to CIL, including certain jurisdictional contexts not amenable to state regulation (namely, admiralty and interstate disputes), as well as gap-filling and interpretation of foreign affairs statutes and treaties. The Article concludes by considering several areas of likely debate during the next decade concerning the domestic status of CIL: corporate aiding and abetting liability under the ATS, application of CIL to the war on terrorism, and the use of foreign and international materials in constitutional interpretation.
Critical Legal Studies

The Paradox of Extralegal Activism: Critical Legal Consciousness and Transformative Politics

Vol. 120 No. 4 The limits of law in bringing about social change have long preoccupied legal thinkers. Recent schools of thought have built upon the critical understanding of these limits to produce a body of literature that privileges extralegal activism. These writings present alternatives to the path of legal reform, purporting to avoid the problems of cooptation and deradicalization that hindered earlier legal activism. Three extralegal focal points emerge in this literature: first, a move from professionalism to “lay lawyering”; second, a move from the legal arena to an autonomous sphere of action; and third, a departure from formal legal norms to softer, informal normativities. This Article demonstrates how these recent developments have drawn erroneous conclusions from critical understandings about the cooptive risks of legal strategies. In particular, proposed alternatives to legal reform strategies fail to recognize ways in which they are frequently subject to the same shortcomings they seek to avoid by opting out of the legal arena. Linking historical examples from the labor movement and the civil rights movement to contemporary social movement and public interest literature, the Article charts a nuanced map of legal cooptation critiques, which include distinct claims about resources and energy, framing and fragmentation, lawyering and professionalism, crowding-out effects, institutional limitations, and legitimation. The Article argues that the contemporary manifestation of a critical legal consciousness has eclipsed the origins of critical theory, which situates various forms of social action on more equal grounds. The new extralegal truism, which rejects legal reform as a transformative path for social change, consequently risks reinforcing the very account that it sets out to resist – namely, that the state is no longer able to ensure socially responsible practices in the twenty-first-century economy.
Contract Law

The Divergence of Contract and Promise

Vol. 120 No. 3 In U.S. law, a contract is described as a legally enforceable promise. So to make a contract, one must make a promise. The legal norms regulating these promises diverge in substance from the moral norms that apply to them. This divergence raises questions about how the moral agent is to navigate both the legal and moral systems. This Article provides a new framework to evaluate the divergence between legal norms and moral norms generally and applies it to the case of contracts and promises. It introduces and defends an approach to the relationship between morality and law that adopts the perspective of moral agents subject to both sets of norms and argues that the law should accommodate the needs of moral agency. Although the law should not aim to enforce interpersonal morality as such, the law’s content should be compatible with the conditions necessary for moral agency to flourish. Some aspects of contract not only fail to support the morally decent person, but also contribute to a legal and social culture that is difficult for the morally decent person to accept. Indeed, U.S. contract law may sometimes make it harder for the morally decent person to behave decently.
Legal History

Creating an American Property Law: Alienability and Its Limits in American History

Vol. 120 No. 2 This article analyzes an issue central to the economic and political development of the early United States: laws protecting real property from the claims of creditors. Traditional English law, protecting inheritance, shielded a debtor’s land from the reach of creditors in two respects. An individual’s freehold interest in land was exempted from the claims of unsecured creditors both during life and in inheritance proceedings. In addition, even when land had been explicitly pledged as collateral in mortgage agreements, chancery court procedures imposed substantial costs on creditors using legal process to seize the land. American property law, however, emerged in the context of colonialism and the dynamics of the Atlantic economy. In 1732, to advance the economic interests of English merchants, Parliament enacted a sweeping statute, the Act for the More Easy Recovery of Debts in His Majesty’s Plantations and Colonies in America, which required that real property, houses, and slaves be treated as legally equivalent to chattel property for the purpose of satisfying debts in all of the British colonies in America and the West Indies. This statute substantially dismantled the legal framework of the English inheritance system by giving unsecured creditors priority to a deceased’s land over heirs. The Act also required that the courts hold auctions to sell both slaves and real property to satisfy debts in most colonies. More broadly, this legal transformation likely led to greater commodification of real property, the expansion of slavery, and more capital for economic development. American landholders, however, were subjected to greater financial risk than would have been the case in the absence of the Act.
Administrative Law

The Strategic Substitution Effect: Textual Plausibility, Procedural Formality, and Judicial Review of Agency Statutory Interpretations

Vol. 120 No. 2 This Article presents a positive theoretical analysis of the relationship between the textual plausibility of an administrative agency’s statutory interpretation and the procedural formality with which the agency promulgates that interpretation. The central claim is that, from the perspective of an agency subject to judicial review, textual plausibility and procedural formality function as strategic substitutes: greater procedural formality will be associated with less textual plausibility, and vice versa. Greater textual plausibility increases an agency’s chances of a favorable judicial ruling but entails some sacrifice of policy discretion. Procedural formality is costly, but a reviewing court may give an agency more substantive latitude when the agency promulgates an interpretive decision via an elaborate formal proceeding. The court may view formal process as a proxy for variables that the court considers important but cannot observe directly, such as the significance of the interpretive issue to the agency’s policy agenda. Because procedural formality and textual plausibility are both costly methods for increasing the agency’s odds of surviving judicial review, a rational agency will choose the optimal mix of textual plausibility and procedural formality. Changes that increase or decrease the costs or benefits associated with one of these two variables will therefore have an indirect effect on the other variable as well. This Article develops the theoretical basis for this strategic substitution effect and explores its ramifications for administrative law.