International Law

Constitutional Law Article

Law for States: International Law, Constitutional Law, Public Law

Vol. 122 No. 7 International law has long been viewed with suspicion in Anglo-American legal thought. Compared to the paradigm of domestic law, the international legal system seems different and deficient along a number of important dimensions. This Article questions the distinctiveness of international law by pointing out that constitutional law in fact shares all of the features that are supposed to make international law so dubious.
Criminal Law Article

Anti-Inquisitorialism

Vol. 122 No. 6 A broad and enduring theme of American jurisprudence treats the Continental, inquisitorial system of criminal procedure as epitomizing what our system is not; avoiding inquisitorialism has long been thought a core commitment of our legal heritage. This Article examines the various roles that anti-inquisitorialism has played and continues to play in shaping our criminal process, and then it assesses the attractiveness of anti-inquisitorialism as a guiding principle of American law. The Article begins by describing four particularly striking examples of anti-inquisitorialism at work: the Supreme Court’s recent reinterpretation of the Confrontation Clause; the Court’s invalidation of mandatory sentencing schemes that rely on facts found by the trial judge; the Court’s endorsement of procedural default rules rejected by the International Court of Justice; and the longstanding invocation of the inquisitorial system in the law of interrogations and confessions. The Article then considers three different reasons the inquisitorial system might be thought a helpful guide to the paths American criminal procedure should not take. The first reason is originalist; it takes inquisitorial processes to be the chief set of evils against which the criminal procedure provisions of the Constitution were intended to provide protection. The second reason is holistic; it appeals to the organic integrity of our adversary system. The third reason is instrumental; it assumes that the inquisitorial system simply is worse than ours – worse at uncovering the truth, worse at protecting individual rights, or worse at preventing abuses of government authority. None of these arguments is fully convincing. There is little evidence that the criminal procedure provisions of the original Bill of Rights were originally intended, or understood, to serve as protections against the inquisitorial system. There is even less reason to think the Fourteenth Amendment had that aim. Regarding the holistic argument, the chief problems are, first, that it is harder than might be expected to identify the core elements of the inquisitorial system, and second, that there is little reason to think that our system of criminal procedure actually has the fragile kind of organic integrity that the argument assumes. Assessing the functionalist argument is more complicated. Elements of the adversary system may in fact have instrumental worth, particularly in protecting against authoritarian abuses. But that is a reason to value those elements of the adversary system, and to value them insofar as they serve other, more fundamental aspirations. It is not an argument for treating the inquisitorial system as epitomizing, across the board, what our system of criminal justice should strain to avoid.
Contract Law Recent Case

Lewis v. Lewis

Colorado Supreme Court Holds Defendants Liable for Full Profits from the Sale of a Home by Applying Unjust Enrichment Theory to an Informal Agreement Between Close Relatives.

Vol. 122 No. 3
Contract Law Article

Treaties as Law of the Land: The Supremacy Clause and the Judicial Enforcement of Treaties

Vol. 122 No. 2 Courts in recent years have perceived threshold obstacles to the enforcement of treaties deriving from their nature as contracts between nations that generally depend for their efficacy on the interest and honor of the parties, rather than on domestic adjudication. This approach to treaty enforcement is in tension with the Constitution’s declaration that treaties are part of the law of the land and its instruction to judges to give them effect. The Founders understood that treaties depended on interest and honor on the international plane, but they made treaties enforceable in our courts anyway in order to avoid the international friction that could be expected to result from treaty violations and to capture the benefits of a reputation for treaty compliance. The Supremacy Clause gives treaties a domestic judicial sanction that they would otherwise lack. It makes treaties enforceable in the courts in the same circumstances as the other two categories of norms specified in the clause – federal statutes and the Constitution itself.