Articles

Diasporas–groups who maintain ties to a homeland while living abroad–present a challenge to standard paradigms of international law. The dominant statist model of international law, which limits the reach of a state’s laws to its own geographic boundaries, allows no legal connection between a diaspora and its homeland. The cosmopolitan model of international law, which minimizes the importance of nationality, also discourages such legal ties. Professor Anupam Chander proposes a third paradigm–the diasporan model–which accommodates the dual loyalties and interests of people living in diasporas by allowing them to be governed by the laws of both their homelands and their adopted countries. As an example of host the diasporan model might settle concrete legal problems, Chander discusses Resurgent India Bonds, a mechanism that the Indian government uses to raise capital from the Indian diaspora. He suggests a diasporan solution to the choice-of-law question raised by foreign-issued securities: enforcing forum-selection clauses which keep private litigants out of U.S. courts, while allowing regulators to enforce U.S. law against foreign issuers. This hybrid solution, Chander argues, makes a diasporan compromise: It respects the sovereignty of the adopted country over matters of public concern while allowing the diaspora to choose the law of its homeland to resolve private disputes.

Congress adopted an estate tax in 1916 in response to concerns about the harmful social effects of wealth concentration. Recently, proposals have been put forward to abolish the estate tax. Professor Repetti explores traditional justifications for the estate tax and reviews political and economic research on the effects of wealth concentration. He determines that wealth concentration is detrimental to the nation’s long-term economic growth because it creates educational disadvantages for the poor and sociopolitical malaise. It also harms the democratic process because it gives the affluent a disproportionally large political voice. He then evaluates the current estate tax and concludes that it provides the important benefits of decreasing dynastic wealth concentration and raising revenues. Moreover, empirical studies suggest that the tax does not discourage savings.

In its recent decision in California Democratic Party v. Jones, the Supreme Court struck down California’s “blanket primary,” which allowed any voter to vote in any race in any party’s primary. The decision has propelled questions of primary voter qualifications to the forefront of constitutional analysis of political parties. This Article analyzes the case law on state regulation of primary elections and argues in favor of constitutional protection for party organizational autonomy in determining qualifications for primary voters. Legal scholars have been almost unanimous in their condemnation of the Court’s decision in Jones. This Article takes a different view. Agreeing with the critics that traditional First Amendment rights of expression and association largely are inapplicable to party primaries, this Article advocates an approach that pays less attention to parties’ status as state actors or private associations and more attention to the functions they play in American democracy. In particular, the Article argues that autonomous parties are a necessary check against one party’s manipulation of the electoral process to its advantage and an indispensable means of aggregating interest groups into the American political system. Recognizing that in the context of primary elections, today’s major political parties are, nevertheless, state actors, the Article concedes that explicit constitutional guarantees preventing discrimination in the right to vote ought to apply to major-party primaries.

In this Article, Richard Painter uses contractarian economic theory to demonstrate general trends in professional responsibility rules, including gradual migration away from standards and toward defined rules and increased use of default rules and opt-in rules. Many rules, however, remain broad standards, and immutable rules remain the principal mechanism for regulating conduct that affects third parties. This Article discusses how additional default rules and opt-in rules, if carefully chosen with protection of third parties in mind, could enrich professional responsibility codes enormously. This Article also proposes that the American Bar Association more clearly define opt-out mechanisms in existing default rules and in some cases make them easier to use earlier in representation of clients. In other cases, aspirational rules, including ethical considerations similar to those in the Model Code, could reinvigorate reputational enforcement of ethics norms, particularly if coupled with disclosure of information about lawyer compliance. Finally, this Article proposes that law firms be encouraged or perhaps required to adopt their own codes of professional responsibility. Law firm codes would fill gaps in the law, address agency problems within law firms, and enhance the quality of feedback that lawyers give to each other about ethics within firms.

Assistant Professor of Clinical Law, New York University. B.A., 1987; J.D., 1993, Yale University.

In this Article, Professor Michael Wishnie addresses the current pressing problem of denial of benefits to legal immigrants under the 1996 Welfare Reform Act in the context of a deeper inquiry into the very heart of immigration law: From where does the federal government derive the power to regulate its borders? Can Congress devolve this power to the states? Looking deeply into jurisprudence and textual sources, as well as history, he ascertains that this authority always has been exclusively federal and that to permit devolution would be to contradict the entire notion of sovereignty. Thus, Professor Wishnie concludes that any devolution of authority over immigration to the states, such as that contained in the 1996 welfare reforms, may not receive the judicial deference traditionally granted to federal immigration law. Instead, any state exercise in the immigration arena, even pursuant to Congress’s explicit approval, must be evaluated under thirty years of precedent subjecting state discrimination against permanent resident aliens to heightened scrutiny.

Newton D. Baker, Baker and Hostetler Professor, College of Law, and Professor, College of Medicine and Public Health, The Ohio State University; Visiting Professor of Law, Spring 2000, Washington and Lee University. B.A., 1970, University of California, Santa Cruz; J.D., 1975, University of Chicago.

While the United States, virtually alone among developed countries, relies primarily on private health insurance to deliver access to health care services, private health insurance is not unknown elsewhere in the world. In this Article, Timothy Jost surveys the mixed public and private health insurance systems of Australia, Chile, Germany, and the Netherlands, as well as the largely public systems of Canada, France, and the United Kingdom. He shows that countries that place significant reliance on private health insurance also regulate the private insurance market heavily; only where private insurance merely supplements universal public insurance is the private market largely unregulated. Professor Jost concludes from his comparative analysis that market-reliant systems are unlikely to reduce the growing number of Americans who are uninsured, and that the differences between highly regulated private insurance systems and largely public insurance systems are less pronounced than generally assumed. While the United States politically is unlikely to move towards public insurance, he writes, a turn towards greater privatization would tend to worsen, rather than improve, the problem of the uninsured.

Assistant Professor of Law, Temple University. B.A., 1991, J.D., 1994, University of Pennsylvania. Vice President and Dean of Graduate Studies and Professor of Sociology, University of Texas at Austin. B.A., 1970, Michigan State University; A.M., 1972, Ph.D., 1975, University of Chicago. Leo Gottlieb Professor of Law, Harvard University. B.S., 1970, Houston University; J.D., 1976, Rutgers University

In 1999, Professors Jacoby, Sullivan, and Warren undertook an empirical study of bankruptcy filings to understand better the circumstances that brought middle-class families to a state of financial collapse. The information gathered in the study, known as Phase III of the Consumer Bankruptcy Project, revealed that an estimated more than half a million middle-class families turned to bankruptcy courts for help after illness or injury that year. The findings of the study illustrate how bankruptcy files document the economic problems families encounter when bills mount and incomes fall in the aftermath of a medical problem. In this Article, Professors Jacoby, Sullivan, and Warren present the data from their study to illustrate that hundreds of thousands of middle-class families in the United States are devastated economically each year under the current health care finance system. Their data indicate that focusing on the presence or absence of health insurance alone would lead to an incomplete solution. Instead, the authors suggest that since bankruptcy effectively serves as part of the health care payment system, bankruptcy policy should be included in any comprehensive review of health care financing policy.

Professor of Law, New York University. B.A., 1972, Amherst College; J.D., 1975, University of Michigan.

Numerous commentators on local government law have advocated some form of regionalization to address metropolitan problems. These recommendations emanate from a conception of local governments, particularly suburbs, as isolated, self-interested entities that ignore or exploit the plight of their neighbors, particularly central cities. In this Article, Professor Clayton Gillette puts forward a justification for decentralized entities and posits a more sanguine relationship among localities within a region. Analogizing from literature concerning firms that form long-term contractual relationships, he contends that neighboring localities may be sufficiently interdependent that they have significant incentives to cooperate through interlocal contracts that realize economies of scale or that share regional distributional burdens. He suggests that any underutilization of interlocal contract depends less on suburban disinterest or exploitation than on contracting costs and legal obstacles that do not affect interfirm relationships as readily. Thus, problems attributed by advocates of regionalization to excessive localism may be redressed best through institutional arrangements that reduce contracting costs. Nevertheless, Professor Gillette argues that some costs inherent in regional burden-sharing contracts, such as those involving observability and verifiability of contract breaches, may be irreducible. He concludes, therefore, that some contracting costs that are endemic in interlocal relations are best circumvented through informal cooperative bargains that avoid problems of monitoring and enforcement.

Professor of Law, New York University. B.A., 1980, Lewis & Clark College; M.A., 1981, University of Pennsylvania; J.D., 1989, Ph.D., 1990, Columbia University.

Some health and safety laws emphasize safety over cost considerations by invoking the principle that safety matters more than money. Other laws rely on cost-benefit analysis (CBA) that equates safety and money. In this Article, Professor Mark Geistfeld argues that, despite their apparent inconsistency, the two regulatory approaches can be reconciled. He first explains why the safety principle most plausibly stands for a distributive claim that in the context of nonconsensual risk impositions, the safety interests of potential victims deserve greater weight than the ordinary economic interests of potential injurers. Although this claim seems to be inconsistent with CBA, Professor Geistfeld analyzes cost-benefit tort rules to demonstrate how potential victims are inadequately compensated for certain types of nonconsensual risks threatening death, an inequity that can be quantified with cost-benefit methodology. He shows that the inequity is defensibly remedied by altering the duty of care to give safety interests greater weight than economic interests (the weighting sanctioned by the safety principle), which ultimately yields a well-defined decision rule that modifies CBA for certain types of nonconsensual risks threatening serious physical injury. Subsequently, he contends that modified CBA (1) satisfies the requirements of modern welfare economics, (2) can accommodate a wide range of normative concerns, and (3) closely conforms to important tort practices, suggesting that it implements a version of the safety principle closely corresponding to the version adopted by the tort system. Finally, Professor Geistfeld concludes that the value of modified CBA is illustrated by the structure it gives to the precautionary principle, a vague regulatory approach based on the safety principle that has become increasingly important and controversial in international law.

Professor of Law, New York University. LL.B., 1991, Tel Aviv University; J.D., 1994, Harvard University.

New communications technologies offer the potential to be used to promote fundamental values such as autonomy and democratic discourse, but, as Professor Yochai Benkler discusses in this Article, recent government actions have disfavored these possibilities by stressing private rights in information. He recommends that laws regulating the information economy be evaluated in terms of two effects: whether they empower one group to control the information environment of another group, and whether they reduce the diversity of perspectives communicated. Processor Benkler criticizes the nearly exclusive focus of information policy on property and commercial rights, which results in a concentrated system of production and homogenous information products. He suggests alternative policies that promote a commons in information, which would distribute information production more widely and permit a greater diversity of communications.