Print Volume 89, Issue 3
The lead article in Issue 3 of Volume 89 is The Unitary Executive and the Plural Judiciary, written by Professor Ronald J. Krotoszynski, Jr., the John S. Stone Chairholder of Law and Director of Faculty Research at the University of Alabama School of Law. In his article, Professor Krotoszynski challenges the conventional wisdom that the decentralized nature of the federal judiciary is a vice because it prevents uniformity of federal law. Instead, Professor Krotoszynski posits that decentralized judicial deliberation improves and enhances the process of resolving difficult questions of fundamental importance and indeed legitimizes the exercise of judicial review.
Professor Gil Seinfeld of the University of Michigan Law School has written a thoughtful piece entitled The Jurisprudence of Union. In it, he argues that questions of federal and state power are often resolved by reference to the Supremacy Clause, but in fact such decisions are truly rooted in what the author calls an “ethic of union.” In other words, just as our legal system has often resolved cases of horizontal federalism by reference to the duty that states owe to one another, Professor Seinfeld argues that vertical federalism cases are often premised on the notion that “states must take ownership of things federal.” This article follows an impressive list of recent publications by Professor Seinfeld on the topic of federal courts, including in the California Law Review, the Michigan Law Review, and the Columbia Law Review.
A Climenko Fellow and Lecturer on Law at Harvard Law School, Seth Davis has authored a piece called The False Promise of Fiduciary Government. In this piece, Davis responds to the “rising chorus of scholars” who have argued for a fiduciary theory of government, which seeks to restrain the political discretion of legislators and administrators through a form of judicial review based upon private fiduciary duties. Davis argues that this promise is a false one, due to problems of fit, intent, and function with the concept of fiduciary government. Davis presently has pieces forthcoming in the Columbia Law Review, the Wisconsin Law Review, and the Columbia Human Rights Law Review.
Professor Ariel Porat, the Greenbaum Distinguished Visiting Professor of Law at the University of Chicago Law School, has written a unique law and economics article titled Ex-Post Right, Ex-Ante Wrong, wherein he explores the paradox of tort claims where the behavior complained of was considered objectively unreasonably dangerous at the time of the injury, but by the time litigation ensues, further information has revealed the practice to be objectively reasonably safe. Professor Porat observes that such claims are rarely brought because plaintiffs and their lawyers assume they are precluded from recovery based on the new information, but argues that such claims should succeed at trial based on efficiency and corrective justice grounds. Professor Porat is the former Dean of the Tel Aviv University Faculty of Law, and in addition to visiting at the University of Chicago, he has also served as a Visiting Professor at NYU, Columbia, Virginia, and Berkeley.
Professor John Watts is an Associate Professor of Law at the Texas Tech University School of Law. His article, titled Tyranny by Proxy: State Action and the Private Use of Deadly Force, explores the state action doctrine by reconsidering the purpose of the doctrine and its exceptions, and redefining the “public function exception” so that it better fulfills its purpose. Professor Watts has published prior articles that explore the interaction between private tort law and state action in the Oklahoma Law Review and the Florida State Law Review.
In her article titled Banking and the Social Contract, Associate Professor Mehrsa Baradaran of the University of Georgia Law School describes the social contract in the context of banking and explains why she thinks it has gone awry. Professor Baradaran then creates a taxonomy of the modern social contract—safety and soundness, consumer protection, and access to credit—and urges regulators to require banks to uphold the major tenets of the social contract, even if it means reduced profitability for the banks. Professor Baradaran has published other excellent articles dealing with the intersection of banking law and social policy in the George Washington Law Review and the Emory Law Journal.
Weathering Wal-Mart, authored by Joseph A. Seiner of the University of South Carolina School of Law, attempts to find a solution to what the author describes as the problem created by the Court in Wal-Mart Stores, Inc. v. Dukes. Specifically, the author says that the negative results of Wal-Mart can be mitigated by government agencies such as the EEOC, who are not subject to Rule 23; by various other procedural mechanisms; or by plaintiffs more aggressively seeking punitive damages. Professor Seiner boasts an impressive list of recent publications in the areas of Civil Procedure and Employment Discrimination, including appearances in the Law Reviews of Wake Forest, Boston College, William & Mary, UC-Hastings, and Iowa.
The Honorable Diarmuid F. O’Scannlain is a United States Circuit Judge who has served on the U.S. Court of Appeals for the Ninth Circuit since 1986. His chambers are located in Portland, Oregon. On February 21, 2013, serving as the Judge James J. Clynes, Jr., Visiting Chair in the Ethics of Litigation within the Judicial Process, Judge O’Scannlain delivered a lecture to the Notre Dame Law School’s London Law Centre. The lecture was titled The Rule of Law and the Judicial Function in the World Today. Judge O’Scannlain has published with the Notre Dame Law Review three times previously, in 2004, 2005, and 2012.