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In his Response to Professor Young’s article, Professor Parry evaluates Young’s assertion that he is defending Medellín even as he pointedly fails to endorse the Court’s reasoning. He also critiques areas in which he finds Young’s reasoning incomplete: his argument that federal courts should give no deference to a foreign or international tribunal’s treaty interpretation; his broad assertion that some treaties are non-self-executing because of vague treaty language; and his doctrinal conclusion that the Supremacy Clause does not require self-execution.
As it is taught today, Torts seems often to be conceived as a course that teaches students how law allocates the costs of accidents, while also providing some instruction on law and economics, or law and philosophy. In this Article, Professors John Goldberg and Benjamin Zipursky aim to change the way Torts is conceived and put us back on track, not just pedagogically but theoretically.
As its name indicates, tort law is about wrongs. Although there is a public aspect to it, tort law is primarily concerned with privately redressable wrongs. After exploring the recent development of the conception of tort as law for the allocation of accidentally caused losses, Professors Goldberg and Zipursky argue for the descriptive superiority of a wrongs-based view and explain that there is value to having law that defines private wrongs and provides recourse to victims of those wrongs. They conclude by identifying ways in which a wrongs-and-recourse approach to tort law can illuminate contemporary and enduring debates within and about tort law while also providing an agenda for further research.
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In this Article, Professors Marcel Kahan and Edward Rock argue that chief executive officers of publicly held corporations in the United States are losing power to their boards of directors and to their shareholders.
This loss of power is recent and gradual, but nevertheless represents a significant move away from the imperial CEO who was surrounded by a hand-picked board and lethargic shareholders. After discussing the concept of power and its dimensions, Professors Kahan and Rock document the causes and symptoms of the decline in CEO power in several areas: share ownership composition and shareholder activism; governance rules and the board response to shareholder activism; regulatory changes related to shareholder voting; changes in the board of directors; and executive compensation. They argue that this decline in CEO power represents a long-term trend, rather than a temporary response to economic and political conditions. The decline in CEO power has several important implications, including implications with respect to the possibility of a regulatory backlash against certain newly empowered shareholder groups, future development in Delaware’s corporate law, the type of persons who will serve on corporate boards in the future, the type of shareholder initiatives that will be introduced and the corporate response to them, the convergence of corporate laws across countries, the source of resistance to acquisitions and the legal regulation of target defenses, the desirability of legal reforms expanding shareholder voting rights, and the relationship between CEOs and private equity firms.
Professor David Robertson reviews Michael S. Moore’s Causation and Responsibility: An Essay in Law, Morals, and Metaphysics.
Professor Robertson describes the book as “an abstruse, ambitious, and intermittently quite difficult presentation of Moore’s intuitions about the nature of causation and the implications of those intuitions for tort law, criminal law, and moral philosophy.” While he finds the book intellectually stimulating and enjoyable, he argues that it falls short of teaching, implementing, manipulating, and critiquing the law in actual operation.
In this Note, Pogge examines how habeas procedures have begun to develop in the aftermath of Boumediene v. Bush, in which the Supreme Court held that Guantanamo detainees possess a constitutional privilege of habeas corpus. He suggests that the D.C. District Court’s post-Boumediene mandate to design procedures for the Guantanamo habeas proceedings, as well as its adjudicatory role in the disposition of these proceedings, substantially impact the inter-branch national security dialogue. After discussing the issues with which the D.C. District Court has grappled, Pogge argues that congressional involvement, particularly in the form of statutory habeas procedures, would ensure a more inter-branch, systemically balanced construction of U.S. detention policy.
In this Note, Ritter discusses the mistake-of-age defense in child pornography cases. While some courts impose a strict liability standard that rejects any mistake defense, others hold that the First Amendment allows offenders to assert a reasonable mistake defense. Underlying these decisions is the tension between the need to protect children from the dangers of child pornography and the conflicting goal of avoiding the chilling effects of overly broad laws. As a compromise between these two conflicting goals, Ritter proposes an intermediate standard that would require defendants claiming a mistake-of-age defense to show that they verified child subjects’ ages with government documents or officials.
In this Note, Robbins explores the worldwide growth of the Islamic finance industry. She notes that the Islamic finance system has not enjoyed widespread acceptance, due in large part to the fact that the industry lacks what some consider a necessary cohesive and overarching governance structure. Robbins outlines three general proposals aimed at addressing this problem: (1) streamlining the educational system for Islamic financial experts; (2) new methods for avoiding conflicts of interests among the field’s influential scholars; and (3) suggested changes for rating the levels of compliance of Islamic financial institutions and companies.
In this Article, Professor Kenneth Bamberger explores the development of the automation of compliance with laws mandating risk management. While new technology systems offer powerful compliance tools, they also bring considerable danger. Professor Bamberger discusses the failure of risk regulation to address these new dangers and proposes specific reform measures for policy makers revisiting the governance of systemic risk.
Professor Bamberger addresses the dangers associated with compliance technology because regulators have lauded the new developments while ignoring their perils. To rectify this problem, he argues for more activist regulator oversight backed by sanctions before disaster has occurred. Additionally, Professor Bamberger emphasizes collaboration in developing risk-management systems, drawing both on the granular expertise of firms and the broader vantage of administrative agencies. Finally, he seeks better to reflect the human decision-making element by recognizing the ways in which technology can hinder good judgment, reintroducing human inputs in the decision process, and reflecting the limits of both human and computer reasoning.
