SEPARATING CONTRACT AND PROMISE
Contract has been conceptualized as a species of promise. This prevailing approach obscures essential differences between legally binding and everyday, or “private,” promises. The moral character of a private promise depends on the fact that it is not only freely made but also freely kept. Contractual promises are not intended to have and do not have this voluntary character.
In making a private promise, a promisor creates a sufficient reason to perform the content of her promise: the very fact of her promise. To the extent she simultaneously creates a second sufficient reason—liability in the case of breach—the first reason does no work, or there is no way to confirm the independent sufficiency of the first reason. Similarly, in the private practice of promise, the fact of promise is itself the ground for the promisee’s belief that the promisor will perform. To the extent the promisee is given independent assurance of performance, she cannot objectively rely on the fact of promise alone. The very act of contracting removes one from the moral world of private promise.
THE COMMUNITY ASPECT OF PRIVATE OWNERSHIP
This Article advances a new understanding of property rights by introducing the concept of the community aspect of private ownership. Unlike traditional accounts, which assign property rights to the individual owner alone, this Article argues that property rights should be conceived as held by the individual owner in partnership with her immediate community. The neighborhood within which a residential property is located holds a limited interest in that property. The Article reaches this conclusion following a discerning reading of the prevalent theories of property law. As they have so far mostly failed to acknowledge this community aspect of ownership, writers in these diverse traditions have not been able to provide a conceptualization of ownership that will correspond to their theories’ own premises. Through the prism of the community aspect of ownership, this Article thus provides not only a more accurate notion of ownership, but also a better view of the contending philosophies of property. In addition, this Article suggests a legal reform that will promote the community aspect of ownership by stabilizing neighborhoods experiencing rapid change in the form of either abandonment or gentrification. Finally, this Article examines the ways in which its proposed community-invested idea of ownership can be applied to problems in other fields of property, torts, and intellectual property law.
LIVE HEARINGS AND PAPER TRIALS
This Article explores a constantly recurring procedural question: When is fact-finding improved by a live hearing or trial, and when would it be better to rely on a written record? Unfortunately, when judges, lawyers, and rulemakers consider this issue, they are led astray by the widely shared—but false—assumption that a judge can best determine issues of credibility by viewing the demeanor of witnesses while they are testifying. In fact, a large body of scientific evidence indicates that judges are more likely to be deceived by lying or mistaken witnesses when observing live testimony than if the judges were to review a paper transcript. Witness presence, in other words, may often harm, rather than improve, the accuracy of credibility assessments. The fact that legal actors value hearings for mistaken reasons does not mean that hearings have no value, but it does raise the concern that live procedure will be employed when it is unneeded or even counterproductive, especially given the lack of available guidance on this question. In this Article, I attempt to remedy this problem by suggesting some guiding principles that lawyers, courts, and rulemakers could rely on when choosing between live and paper-based fact-finding.
TAKING INTERNATIONAL LAW AT ITS WORD AND ITS SPIRIT: RE-ENVISIONING RESPONSIBILITY TO PROTECT AS A BINDING PRINCIPLE OF INTERNATIONAL LAW
Sovereignty rests at the core of debates over the validity of humanitarian intervention in situations of grave crisis and loss of life. All too frequently, opponents of sovereignty use the concept to halt international action aimed at stopping or lessening human suffering in a sovereign state. Sovereignty as a blockade, however, is an incomplete understanding of the doctrine. While sovereignty protects the right of a nation to exist and govern itself, proponents of the Responsibility to Protect (hereinafter RTP) as a norm of international law recognize that sovereignty entails the responsibility to protect populations from human rights abuses. Finding its grounding in multiple international treaties and the concept of sovereignty itself, the RTP doctrine makes strides in overcoming the non-intervention norm. As a non-binding norm, however, RTP cannot overcome a second common block to intervention: lack of political will. To ensure international action will proceed in the face of grave human rights abuses, scholars and proponents of RTP must better delimit the doctrine and transition RTP to a binding principle of international law, as well as advocate for reform of the U.N. Security Council veto power.
RESTORING THE BALANCE AFTER THE PRIVATE SECURITIES LITIGATION REFORM ACT OF 1995
Laura A. McDonald
For the past several decades, Congress has struggled to develop a system of private litigation that works for securities fraud claims. Most notably, Congress passed the Private Securities Litigation Reform Act (the Reform Act) of 1995 in response to complaints that plaintiffs were abusing the litigation process. Specifically, many individuals alleged that plaintiffs were excessively filing frivolous claims, or strike suits, hoping the corporations they sued would succumb to the pressures of litigation and settle. Accordingly, the Re-form Act established certain procedural barriers, including a heightened pleading standard and mandatory stay on discovery, aimed at preventing plaintiffs from bringing such claims. As a result, courts began to dismiss more securities fraud cases, finding they did not comply with the Reform Act’s new procedural requirements.
SAY-ON-PAY: CAUTIONARY NOTES ON THE USE OF THIRD PARTY COMPENSATION GUIDELINES IN THE UNITED STATES
Outrage over executive compensation practices has fueled calls to increase shareholder participation in the executive compensation process. Beginning January 20, 2011, the Dodd-Frank Act mandates shareholders receive nonbinding, advisory votes on the compensation of executives and any “golden parachutes” provided to executives.1 However, the say-on-pay provisions of Dodd-Frank remain problematic, particularly in light of the United Kingdom’s experience with similar provisions. Despite greater disclosure of executive compensation plans, many shareholders continue to lack the incentives and ability to accurately evaluate the information given to make an informed decision regarding whether executive pay is reasonable.
JURISPRUDENTIAL JUXTAPOSITION: APPLICATION OF GRAHAM V. FLORIDA TO ADULT SENTENCES
John “Evans” Gibbs
At best, the U.S. Supreme Court’s Eighth Amendment proportionality jurisprudence has been fractured and uncertain since its inception. This has lead to uncertainty in sentencing, as well as questions regarding the constitutionality of many sentences. However, with the Court’s recent landmark decision in Graham v. Florida, the Court revived its proportionality analysis and seemingly breathed new life into it, enunciating a somewhat different approach to scrutinizing sentence constitutionality under the Eighth Amendment.