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A Comparative Look at the Rise of "American Arbitration": Reflections on Private/Public Partnership in French and American State-BuildingIn both the United States and France, conceptions of the state and its relationship to civil society are defined in part in antithesis to that of the transatlantic other. The United States has long claimed an exceptionalist history of relying on civil society to promote democratic governance-and individual liberty-in the absence of state authorities. France and its bureaucratic state are taken as representative of the dangers that follow from overly empowering the state-including a sclerotic economy ill-equipped to adjust to change and rigidly uniform notions of cultural identity, hostile to racial and religious difference. Emerging out of the French Revolution, France, in turn, embraced a Jacobin ideal of state/society relations, pursuant to which the state is responsible for ensuring individual equality under the law by preventing the intermediation of any private groups. On this view, it is the state alone that can be trusted to act for the public good. And the United States stands as a powerful example of the ills that follow from enabling private groups to usurp public authority-including the disproportionate empowerment of the wealthy and animosity between different racial and religious groups.
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The Lawyer's Quandary: Client-Centered Lawyering in the Treatment Paradigm.Client-centered criminal defense attorneys endeavor to maximize their client's autonomy, using their expertise to counsel their client through the criminal process. Indeed, the criminal system relies on defense counsel to ensure fairness and, in turn, help legitimize the system. What does it mean for the system if the client-centered lawyer can't fulfill their goals?. This Article argues that, because today's criminal system uses a treatment paradigm reliant on mandated treatment for defendants with mental disabilities, defense attorneys must then confront a lawyering quandary. It does so by exploring the challenges client-centered lawyers face in representing clients with mental health conditions categorized as personality "disorders," who are likely to struggle completing mandated treatment programs, in turn complicating their path for lowering imprisonment exposure and accessing care. Through a discussion of the obstacles lawyers face on behalf of clients with personality conditions, this Article illuminates deeper systemic failures in how the criminal system handles mental health issues.
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Reconstructing Critical Legal Studies.It is an increasingly propitious moment to build another radical theory of law, after decades of relative quiescence in law schools since the last such opportunity. This Essay offers a reinterpretation of the legacy of critical theories of law, arguing that they afford useful starting points for any radical approach, rather than merely cautionary tales of how not to proceed. This Essay revisits the critical legal studies movement and imagines its reconstruction. Critical legal studies extended the social theory of law pioneered by legal realism and framed law as a forceful instrument of domination. However, critical legal studies also recognized that such a theory of law is compatible with both functional and interpretative underdeterminacy. Legal order oppresses, and the way it does so is never accidental or random--in other words, law is often determinate enough that it routinely serves oppression. Yet at the same time, law regularly accommodates alternative pathways of control and contestation through processes of interpretation of elusive or vague legal meaning by courts and other institutions. This Essay concludes by showing that the parameters of a radical social theory of law--parameters we should reclaim critical legal studies for helping establish--apply to current or future attempts to build any successor, taking account of critical race theory, feminist legal thought, and most especially the emergent law-and-political economy movement. The law-and-political-economy movement is the most prominent leftist or at least progressive movement in law schools today, but critical legal studies challenges it to better identify its core principles. Had critical legal studies never existed, it would have to be invented today.
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Introduction to Yale Journal on Regulation Symposium on Financial Regulation.An introduction to the journal is presented which discusses various reports within the issue about regulatory environment of banks, including how the Federal Home Loan Bank system works, public banking, and deposit insurance.
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Abortion, Full Faith and Credit, and the" Judicial Power" Under Article III: Does Article IV of the US Constitution Require Sister-State Enforcement of Anti-Abortion Damages Awards?Interstate judgments enforcement is governed by the Full Faith and Credit Clause of Article IV of the Constitution, together with its implementing statute, 28 U.S.C. 1738. Although a highly technical area of the law, interstate judgments enforcement has important social repercussions for some very modern problems of great cultural significance. One of the currently significant applications is the interstate enforcement of judgments rendered in civil suits based on state anti-abortion laws. For example, Texas statute S.B. 8 gives anyone who wishes to sue a civil cause of action against persons who facilitate abortions. Even complete strangers to the abortion can decide to become a plaintiff in such an action and can sue for money “damages” despite having suffered no injury. Non-experts seem to have the impression that the Full Faith and Credit Clause presents an ironclad requirement that judgments of sister states must always be enforced. If that were the case, states that recognize reproductive freedom would be obliged to enforce judgments entered into in states like Texas, despite their strong public policy against such actions. This Article shows why this impression is mistaken. First, the full faith and credit principle has for centuries been subject to exceptions, several of which are potentially relevant in the reproductive freedom context. These include lack of subject matter jurisdiction, the public policy exception, and the penal law exception. In addition, a uniform law adopted in forty-eight states (the Uniform Enforcement of Foreign Judgments Act) permits the state enforcing the judgment to apply its own judgments law to an interstate enforcement proceeding. The enforcing state will therefore apply to foreign state judgments any exceptions to judgments enforcement law that it has as a general matter for its own domestic judgments. Second, and more importantly, the Clause and statute both contain an important qualification: they apply only to “judicial” actions. This exception prevents a state from requiring sister-state enforcement of decisions that do not meet the usual tests for a judicial “case or controversy” (as defined in Article III of the Constitution). Article III and Article IV both use the word “judicial” to specify the standard necessary for the exercise of federal power. These two neighboring constitutional provisions are supported by a common historical origin (they were drafted at the same time and by some of the same people at the constitutional drafting convention) and fulfill comparable functions. If the two constitutional provisions are treated the same, judgments under statutes like Texas S.B. 8 would not be given mandatory force in other states because such cases would not meet the standing requirement imposed by Article III.