In their recent book, The Limits of International Law, Professors Goldsmith and Posner throw down the gauntlet to scholars of international law. They advance a deeply pessimistic account of international law and its role in affecting state behavior — alleging that customary international fails to act as “an exogenous influence on states’ behavior,” and expressing skepticism that multinational collective action problems can be solved by treaty. This review represents a response to the book’s claims. It is demonstrated that there is no theoretical reason to conclude that international law is ineffective, whether it addresses bilateral or multilateral problems and whether it takes the form of written agreements or customary law. Adopting the same rational choice framework used by Goldsmith and Posner, it is shown that rational states have a reason to value a reputation for compliance with international law and, therefore, a reason to comply with their international legal obligations. The mechanism through which international law affects state behavior is obviously of central importance to those seeking to understand the international legal system. This review both explains the assumptions required to generate the results provided in The Limits of International Law and illustrates how more reasonable assumptions support a theory of international law in which state behavior is constrained by their international legal commitments.
Volume 92
Exclusionary Amenities in Residential Communities
This article identifies an important mechanism by which segregation arises in new residential developments. The Fair Housing Act and other antidiscrimination laws closely regulate real estate sales, advertising, and racial steering. As a result of these laws and other factors, purchasers of homes often lack accurate information about the likely demographic makeup of a new neighborhood or condominium building. Yet these laws have not eroded the incentives for housing consumers to obtain this data. This article argues that developers can circumvent fair housing laws by embedding costly, demographically polarizing amenities within a new development and recording covenants mandating that all homeowners pay for those amenities. Its central claim is that developers will select common amenities not only on the basis of which amenities are inherently welfare-maximizing for the residents, but also on the basis of which amenities most effectively deter undesirable residents from purchasing homes in the development. The article dubs this approach the exclusionary amenities strategy and shows how it causes sorting and focal point mechanisms to act in concert, thereby engendering substantial residential homogeneity. The inability to exclude functions as an inducement to spend.
During the 1990s, the United States experienced a boom in the construction of residential developments built around costly golf courses. This occurred at a time when golf participation functioned as a noticeably better proxy for race than income, wealth, or virtually any other characteristic. Curiously, substantial numbers of Americans who purchased homes in mandatory-membership golf communities played no golf. This article offers circumstantial evidence suggesting that by purchasing homes in these communities, homeowners may simply have been paying a premium for residential racial homogeneity. The article then identifies a number of other examples where developers, or even municipalities, appear to be pursuing an exclusionary amenities strategy. It also identifies instances in which the use of exclusionary amenities may further neutral, or even laudable, objectives.
The article then notes the possibility of inclusionary amenities, and shows how a few developers, common interest communities, and municipalities have used these amenities to achieve greater residential heterogeneity than would otherwise have been possible. It concludes by evaluating the law’s current stance of leaving exclusionary amenities largely unregulated, and examines various strategies for curbing the use of exclusionary amenities to achieve racial homogeneity.
The Law Clerk Who Wrote Rasul v. Bush
This article uncovers the deep doctrinal and personal roots of Rasul v. Bush, the landmark Supreme Court decision holding that federal courts have jurisdiction to hear challenges to the detention at Guantanamo Bay Naval Base, Cuba, of foreign nationals captured abroad in the war on terror. Under entrenched views of precedent, shared by lower courts, commentators, and the parties alike in Rasul, the Court could only reach that result by either distinguishing or overruling Johnson v. Eisentrager, a case arising from World War II which had arrived at the opposite conclusion regarding other habeas petitioners captured and detained abroad. However, Justice Stevens’ opinion for the Court took a more peculiar tack: it declared the case already overruled. Even stranger, the opinion did so by relying, pivotally, on an obscure dissent from an earlier case ignored by everyone else as irrelevant precedent concerning venue rather than jurisdiction. That dissent, in Ahrens v. Clark, was drafted in critical parts by a law clerk for Justice Rutledge named John Paul Stevens.
The story of how Justice Stevens ingeniously related Eisentrager to the Ahrens dissent, and thereby reversed their precedential worth in Rasul, is a remarkable one in Supreme Court history. As told in this article, the story reveals the intriguing extent to which Stevens’ work in Ahrens over fifty years ago influenced the reasoning if not the result in Rasul. This telling, in turn, supplies insight into Rasul’s ramifications on the ability of another important class of captives in the war on terror – those confined abroad outside of Guantanamo Bay – to challenge their detention in federal court. While other articles have examined Rasul on a doctrinal or theoretical level, none have traced the decision back to Stevens’ work in Ahrens. That archaeology is essential for a full understanding of Rasul, and for an appreciation of its place in the history of the Supreme Court and the jurisprudence of Justice Stevens.