This essay discusses a simple proposal that could reduce litigation costs in the country by about half, yet without compromising the functioning of the liability system in a significant way. Under the proposal (1) only half the cases brought before a court would be randomly chosen for litigation, and (2) damages would be doubled in cases accepted for litigation. The first element of the proposal saves litigation costs and the second preserves deterrence of undesirable behavior. The effect of the proposal on settlement is emphasized, one important implication of which is that settlement is likely to occur before cases are filed (and possibly randomly eliminated), in which event plaintiffs will definitely be compensated.
Constitutional Calcification: How the Law Becomes What the Court Does
This Article articulates and explores an important distinction in constitutional law: the distinction between the requirements of the Constitution (“constitutional operative propositions”) and the rules that courts apply to decide whether those requirements have been violated (“constitutional decision rules”). The distinction has long been recognized, but until recently there have been few systemic investigations of its origin and consequences. The article first offers a sustained analysis of the factors that drive courts to create particular sorts of decision rules to enforce constitutional operative propositions. It then uses this account of the justification for different kinds of decision rules to explain and critique the Court’s jurisprudence in a number of different areas of constitutional law: the Commerce Clause, the Equal Protection Clause, the Free Exercise Clause, constitutional criminal procedure, and Section Five of the Fourteenth Amendment. Last, it explores a particular pathology that has thus far escaped attention. As doctrine becomes stable, the Court consistently begins to treat its decision rules as though they were operative propositions. This mistake has grave consequences, both for the soundness and coherence of doctrine and for the Court’s institutional role. By highlighting the consequences of confusing decision rules and operative propositions, the Article offers a fresh and useful perspective on controversial areas of constitutional law.
Exiting Treaties
This Article analyzes the under-explored phenomenon of unilateral exit from international agreements and intergovernmental organizations. Although clauses authorizing denunciation and withdrawal from treaties are pervasive, international legal scholars and international relations theorists have largely ignored them. This Article draws upon new empirical evidence to provide a comprehensive interdisciplinary framework for understanding treaty exit. It examines when and why states abandon their treaty commitments and explains how exit helps to resolve certain theoretical and doctrinal puzzles that have long troubled scholars of international affairs.