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Choice‐of‐Law Principles

Erin A. O'Hara and Larry E. Ribstein

in The Law Market

This chapter focuses on the legal treatment of choice of law to illustrate one important function of choice-of-law clauses: predictability. Without these clauses, the parties must rely on a morass of ... More

This chapter focuses on the legal treatment of choice of law to illustrate one important function of choice-of-law clauses: predictability. Without these clauses, the parties must rely on a morass of legal rules that give them at best vague ideas about what rules apply to their relationships. This chapter describes the choice-of-law theories that scholars have developed and courts have applied over the last century, with an emphasis on the current choice-of-law rules for contracts. The current system is unsatisfying because it leaves parties with little ability to know at the time of entering into their contract what law will govern their relationships and transactions and facilitates the passage and maintenance of bad laws. Unfortunately, Congress, the state legislatures, and the Supreme Court have consistently failed to help contracting parties escape from the confusing common law choice-of-law rules. The chapter concludes by demonstrating that enforcement of choice-of-law clauses is the best hope for enabling contracting parties to obtain predictability and the best-fitting governing law.Less

A Federal Choice‐of‐Law Statute

Erin A. O'Hara and Larry E. Ribstein

in The Law Market

This chapter proposes a way to preserve the benefits of the law market while eliminating some of the impediments to its efficient operation: a federal statute that compels states to enforce ... More

This chapter proposes a way to preserve the benefits of the law market while eliminating some of the impediments to its efficient operation: a federal statute that compels states to enforce choice-of-law clauses. The proposed statute is crafted to both promote enforcement of contractual choice of law and enable states to retain their power to enact “super-mandatory” rules that trump choice-of-law clauses. The proposal and analysis therefore attempt to balance state regulatory concerns with the benefits of jurisdictional competition. The chapter begins by showing why the proposed solution needs to be initiated by Congress rather than the state governments, why state uniform laws do not provide a solution to the problems addressed by choice of law, and why a statute is necessary to provide needed clarity and predictability for contracting parties.Less

Descent and Genealogy: The Changing Landscape of Tribal Membership Governance in the United States

Kirsty Gover

in Tribal Constitutionalism: States, Tribes, and the Governance of Membership

In the United States, the modern period of tribal constitutionalism began in the 1930s. This chapter illustrates the ways in which tribes have altered their membership governance to maintain and ... More

In the United States, the modern period of tribal constitutionalism began in the 1930s. This chapter illustrates the ways in which tribes have altered their membership governance to maintain and repair continuity during shifts in federal Indian policy and tribal demography. Tribes are increasingly likely to use lineal descent and blood quantum rules after 1970, in place of apparently ethnically-neutral rules, such as parental enrolment or residence. Tribes also increasingly prefer tribe-specific measures of blood quantum, in contrast to the pan-tribal concept of Indian blood quantum used in federal law and policy. Together these changes suggest that tribes are becoming more ‘genealogical’ in their approach to membership governance, favouring descent rules over racial measures.Less

Summary and Implications

Erin A. O'Hara and Larry E. Ribstein

in The Law Market

The final chapter includes thoughts on some of the broader implications of the book. The law market can change one's view of regulation. What really matters to whether regulations are binding is not ... More

The final chapter includes thoughts on some of the broader implications of the book. The law market can change one's view of regulation. What really matters to whether regulations are binding is not whether a rule is mandatory, but whether it is “super-mandatory” in the sense of withstanding parties' ability to contract for more permissive laws. The law market also has implications for the future of the law of subordinate jurisdictions in larger, often federal, systems. The globalization of business has profoundly undermined the territorial basis of lawmaking. The law market replaces territory with contract, thereby breathing new life into lawmaking by the subordinate jurisdictions. Finally, although the book has tended to emphasize the market for law within the United States, it closes by emphasizing that the analysis applies equally to international law markets.Less

Judicial Review of Federal Laws: The Meaning of the Necessary and Proper Clause

Randy E. Barnett

in Restoring the Lost Constitution: The Presumption of Liberty

This chapter examines whether the Necessary and Proper Clause of the Constitution precludes or invites the exercise of judicial review of a federal law to see if it lies within the powers of Congress ... More

This chapter examines whether the Necessary and Proper Clause of the Constitution precludes or invites the exercise of judicial review of a federal law to see if it lies within the powers of Congress to enact. Evaluating whether a federal law is constitutional must begin with whether Congress has acted within the powers it is granted in the Constitution. The chapter first provides an overview of the origins of the Necessary and Proper Clause before discussing the meaning of the term “proper.” It then examines the merits of applying the presumption of constitutionality to federal laws. In particular, it considers the original meaning of the constitutional provision giving Congress the power “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”Less

The Proper Scope of Federal Power: The Meaning of the Commerce Clause

Randy E. Barnett

in Restoring the Lost Constitution: The Presumption of Liberty

This chapter examines the propriety of federal laws under the power most often invoked to justify restrictions on liberty: the power to regulate commerce among the several states. Courts are not ... More

This chapter examines the propriety of federal laws under the power most often invoked to justify restrictions on liberty: the power to regulate commerce among the several states. Courts are not empowered to disregard powers that are expressly enumerated in the Constitution, even those that violate the rights of the people. They are authorized only to interpret the meaning of these powers, and where this meaning is underdeterminate, to construe them in a manner that is consistent with original meaning and that would render their exercise as legitimate as possible. The chapter analyzes the federal power to regulate commerce by explaining what the Commerce Clause means. It also considers judicial interpretations of commerce during the period 1824–1935 and shows that the term “among the states” independently limits federal power with respect to commerce. Finally, it reviews John Marshall's arguments in Gibbons v. Ogden.Less

Cultural Conflicts *

Annelise Riles

in Law and Anthropology: Current Legal Issues Volume 12

It is no secret that there is widespread dissatisfaction with the prevailing doctrinal approaches to conflict of laws in the United States. The ‘methodologies’ for resolving conflicts problems that ... More

It is no secret that there is widespread dissatisfaction with the prevailing doctrinal approaches to conflict of laws in the United States. The ‘methodologies’ for resolving conflicts problems that compete for judicial attention in the United States coexist uneasily in the Second Restatement, since none has managed to garner sufficient support, and each has been the subject of extensive scholarly and judicial criticism. This chapter suggests that the general dissatisfaction with conflicts as a field in the United States, and its failure to live up to its larger promise, may stem in part from the fact that doctrines and theories fail to address what our moral intuition tells us that conflict problems are about. It takes as its primary example a case of cultural conflict between Native American legal norms and US state and federal law. The conflict between Native American and settler culture is foundational to the political and legal system of which US conflicts is a part, and is arguably the silent background against which questions of the politics of cultural recognition are entertained, defined, or rejected in US cultural, political, and legal life.Less

Judicial Review of Federal Statutes

Stefanie A. Lindquist and Frank B. Cross

in Measuring Judicial Activism

This chapter measures the justices' voting behavior in cases challenging the constitutionality of a federal statute, for the period 1954 to 2004 (the Warren, Burger, and Rehnquist Courts). First, the ... More

This chapter measures the justices' voting behavior in cases challenging the constitutionality of a federal statute, for the period 1954 to 2004 (the Warren, Burger, and Rehnquist Courts). First, the chapter describes the pattern of the Court's overall decision making in connection with constitutional review of federal enactments. Because these cases raise the possibility of the Supreme Court's invalidating the actions of a co-equal branch of government, they are among the most important elements of any analysis of judicial activism. The statistical evaluation of the justices' voting behavior these cases reflect substantial disparities between the justices in terms of their willingness to vote to invalidate federal laws, with several justices demonstrating high levels of both institutional activism and ideological activism, including Justices Douglas, Marshall, Brennan, Thomas, and Scalia.Less

Federal Limits on State Constitutions

Robert F. Williams

in The Law of American State Constitutions

This chapter analyzes the various ways in which state constitutions are limited by the federal Constitution and federal law, which are the supreme law of the land. Provisions in state constitutions ... More

This chapter analyzes the various ways in which state constitutions are limited by the federal Constitution and federal law, which are the supreme law of the land. Provisions in state constitutions can violate not only the federal Constitution itself, but also federal statutory law, administrative regulations, federal common law, and even treaties and interstate compacts. In addition, enabling acts passed by Congress to facilitate the admission of new states can have continuing, limiting effect on states' constitutions to the extent that such federal provisions are based on ongoing congressional power (not just the power to admit new states). In some contexts federal law can preempt the provisions of state constitutions. All of these ways in which federal law limits the content of state constitutions are enforceable by the courts.Less

Constitutional Controls on Delegation

Catherine M Donnelly

in Delegation of Governmental Power to Private Parties: A Comparative Perspective

A central issue in the discussion of delegation of governmental power to private actors is the extent to which governmental actors enjoy a capacity to delegate their power in the first instance. This ... More

A central issue in the discussion of delegation of governmental power to private actors is the extent to which governmental actors enjoy a capacity to delegate their power in the first instance. This chapter examines the role of constitutional law in limiting this delegation capacity. The experiences of the three jurisdictions are examined according to three factors: first, the constitutional source of restraint; second, control technique; and third, judicial attitudes to the appropriateness of intervening in governance choices that may be perceived to be taken more appropriately by the legislature or executive. Close scrutiny is given to the US federal non-delegation doctrine; equivalent robust state non-delegation doctrines, and in particular, the non-delegation doctrine developed by the Texas Supreme Court in the Boll Weevil case; the limitations of the UK's unwritten constitution in this context; and the ECJ's seminal case on delegation, Meroni v High Authority.Less

An Uncertain Influence: The Role of the Federal Government in California, 1846–1880

Robert J. Chandler

in Taming the Elephant: Politics, Government, and Law in Pioneer California

This chapter states that federal involvement was vital in certain arenas; chief among them was the creation of California's transportation system, including the railroads. After the war, the federal ... More

This chapter states that federal involvement was vital in certain arenas; chief among them was the creation of California's transportation system, including the railroads. After the war, the federal government began to exceed some state and private efforts in economic affairs and assert more influence over politics, but the same imprecision existed. Federal assistance, including by the armed services, was vital in building California's transportation system. Complicating the federal role in Indian policy, intense conflict erupted in California after 1846. The Civil War ended Indian-settler conflict in California. General federal land law for California became more troublesome than that governing mineral lands. As the twentieth century approached, new economic and environmental areas caused federal government concern. Conservation, land use and water rights, and abuses by huge monopolies such as the government-spawned Southern Pacific Railroad, would bring regulation. The new century would give the national government the dominant role.Less

Criminal Law and Procedure

Stephen Zamora, José RamlÓN CossÍO, Lenone Pereznieto, José Roldá n-Xopa, and David Lopez

in Mexican Law

This chapter focuses on criminal law and procedure in Mexico. It begins by examining the historical background and sources of criminal law, and this is followed by a discussion on judicial precedent ... More

This chapter focuses on criminal law and procedure in Mexico. It begins by examining the historical background and sources of criminal law, and this is followed by a discussion on judicial precedent in criminal matters and the scope of federal criminal Law. It then provides an overview of criminal offences, and describes criminal punishment as well as termination of criminal liability. Finally, it discusses federal criminal procedure, which has served as the model for criminal procedure in most of the states.Less

Antitrust Federalism

Daniel A. Crane

in The Institutional Structure of Antitrust Enforcement

This chapter deals with a series of long-standing and sometimes difficult federalism issues in the United States. Modern federalism principles allow both races to the top and races to the bottom but ... More

This chapter deals with a series of long-standing and sometimes difficult federalism issues in the United States. Modern federalism principles allow both races to the top and races to the bottom but neither the top nor the bottom is likely to be the most favorable locus for antitrust policy. There is no doubt that federal law has the constitutional right to supremacy and it is up to Congress to retrieve this supremacy.Less

The American Contract Law Framework

Kathleen Gutman

in The Constitutional Foundations of European Contract Law: A Comparative Analysis

Chapter 3 examines four main strands of the American contract law framework: American ‘federal common law’, uniform and model laws promulgated by the National Conference of Commissioners on Uniform ... More

Chapter 3 examines four main strands of the American contract law framework: American ‘federal common law’, uniform and model laws promulgated by the National Conference of Commissioners on Uniform State Laws (NCCUSL), Restatements published by the American Law Institute (ALI), and the Uniform Commercial Code (UCC), which is a joint product of these two organizations. This is done with a view to elucidating their meanings, the problems associated with their usage, and the extent to which they are related to the prospect of federalization of contract law in the US. For each strand, a general overview, its origins, and certain underlying tensions are presented.Less

Regulating Government Contracts

A C L Davies

in The Public Law of Government Contracts

This chapter introduces the regulatory regime for government contracts in English law, highlighting three key features of that regime. First, although government contracts are commonly thought of as ... More

This chapter introduces the regulatory regime for government contracts in English law, highlighting three key features of that regime. First, although government contracts are commonly thought of as a matter for private law, public law rules — both common law and statutory — play an important role in their regulation. Second, it is not possible to understand the formal legal regime without considering internal government guidance. Often, this is more important than common law or statute as a source of rules for officials. Third, it is essential to consider the interaction between ‘domestic’ law and EU law (and the Government Procurement Agreement at the international level) in regulating the procurement process in particular. The chapter also gives an overview of the way in which government contracts are regulated in two other jurisdictions, French law, and US federal law. Both jurisdictions offer important comparisons and contrasts with English law's approach.Less

Customary International Law

Curtis A. Bradley

in International Law in the U.S. Legal System

This chapter considers the status in the U.S. legal system of customary international law. After considering what the text of the Constitution suggests about this issue, the chapter discusses how ... More

This chapter considers the status in the U.S. legal system of customary international law. After considering what the text of the Constitution suggests about this issue, the chapter discusses how courts historically applied customary international law in cases in which it was relevant and how courts referred to it as “part of our law.” The chapter also explores the possibility that customary international law might have the status of modern “federal common law” and what such a status might mean for questions of jurisdiction, preemption of state law, and limitations on congressional and executive authority. It also discusses ways in which customary international law can be applied indirectly in the U.S. legal system, such as through application of the Charming Betsy canon of construction. The chapter concludes by discussing recent debates over the Supreme Court’s consideration of foreign and international law materials when interpreting the U.S. Constitution.Less

Trends and Issues in the U.S. Child Welfare System

Jill Duerr Berrick

in Child Protection Systems: International Trends and Orientations

The U.S. child welfare system, made up of many variations at the state and local levels, is unified in design by federal laws and regulations. This chapter reviews the definition of maltreatment as ... More

The U.S. child welfare system, made up of many variations at the state and local levels, is unified in design by federal laws and regulations. This chapter reviews the definition of maltreatment as set forth by the federal government, along with rates of maltreatment reporting nationwide. A description of the general parameters of the child welfare system is provided including prevention services, out-of-home care, and long-term living alternatives for children who cannot return to their birth parents. Major federal legislation shaping child welfare policy is reviewed, though many current reform efforts are initiated at the local level. Some of the most prevalent reforms are reviewed in some detail include practice changes related to family-centered services, and cultural and community continuity.Less

State Courts as Enforcers of Federal Law

in Polyphonic Federalism: Toward the Protection of Fundamental Rights

This chapter concentrates on state court enforcement of federal law. It describes how the polyphonic perspective fosters an appreciation for the benefits of intersystemic adjudication. State court ... More

This chapter concentrates on state court enforcement of federal law. It describes how the polyphonic perspective fosters an appreciation for the benefits of intersystemic adjudication. State court enforcement of federal law can play a significant role in promoting the goals of federalism. Such intersystemic adjudication leads to a more innovative and resilient jurisdictional system and also safeguards human rights. The state courts and Congress act as partners in realizing federal statutory rights. A polyphonic conception of federalism emphasizes that the dual court system in the United States provides dual means of enforcing rights. An important function of federal law is to prevent state tyranny, but the sovereign immunity doctrines of Seminole Tribe v. Florida and Alden v. Maine threaten to immunize states from the application of federal law. These decisions hinder the enforcement of federal statutes that regulate tyrannic state conduct.Less