Volume 157, Issue 1 
November 2008
Articles

Making Credit Safer

Oren Bar-Gill and Elizabeth Warren

Oren Bar-Gill and Elizabeth Warren’s Making Credit Safer begins by noting that, while physical products, from toasters to toys, are routinely inspected and regulated for safety, credit products, like mortgage loans and credit cards, are left largely unregulated, even though they can also be unsafe. Because financial products are analyzed through a contract paradigm rather than a products paradigm, consumers have been left with unsafe credit products. Bar-Gill and Warren use the physical products analogy to build a case, supported by both theory and data, for comprehensive safety regulation of consumer credit and propose a fundamental restructuring of this current regulatory regime, urging the creation of a new federal regulator that will have both the authority and the incentives to police the safety of consumer credit products.


Dynamic Incorporation Of Foreign Law

Michael C. Dorf

Lawmaking bodies in one polity sometimes incorporate the law of another polity “dynamically,” so that when the law of the foreign jurisdiction changes, the law of the incorporating jurisdiction changes automatically. Dynamic incorporation can save lawmaking costs, lead to better legal rules and standards, and solve collective action problems. Thus, the phenomenon is widespread. Dynamic incorporation does, however, delegate lawmaking power. Further, as the formal and practical barriers to revocation of the act of dynamic incorporation become higher, that act comes closer to a cession of sovereignty, and for democratic polities, such cessions entail a democratic loss. Accordingly, dynamic incorporation of foreign law has proven controversial both within federal systems and at the international level. The problem is most acute when nation states agree to delegate law-making power to a supranational entity. In order to gain the reciprocal benefits of cooperation and coordination, the delegation must be functionally irrevocable or nearly so. Representation of the member nation states within the decision-making structures of the supranational entity can ameliorate, but cannot fully compensate for, the resulting democratic losses suffered by those nation states. More broadly, the benefits of dynamic incorporation must always be balanced against its costs, including the cost to self-governance.


International Tribunals: A Rational Choice Analysis

Andrew T. Guzman

In well-functioning domestic legal systems, courts provide a mechanism through which commitments and obligations are enforced. A party that fails to honor its obligations can be brought before a court and sanctioned through seizure of person or property. The international arena also has courts or, to expand the category somewhat, tribunals. These institutions, however, lack the enforcement powers of domestic courts. How, then, do they work, and how might they work better or worse? The first objective of this Article is to establish that the role of the tribunal is to promote compliance with some underlying substantive legal rule. This simple yet often-overlooked point provides a metric by which to measure the effectiveness of tribunals. But a tribunal does not operate in isolation. The use of a tribunal is one way to resolve a dispute, but reliance on diplomacy and other traditional tools of international relations is another. Furthermore, even if a case is filed with a tribunal, there may be settlement prior to a ruling and, even if there is a ruling, the losing party may refuse to comply. Understanding international tribunals, therefore, requires consideration of the entire range of possible outcomes to a dispute, including those that do not involve formal litigation. The second goal of this Article is to develop a rational-choice model of dispute resolution and tribunals that takes this reality into account. The third goal is to explore, based on the above model, various features of international tribunals and identify those that increase effectiveness and those that reduce it. Finally, the Article applies the analysis to help us understand two prominent tribunals: the World Trade Organization’s Appellate Body and the United Nations Human Rights Committee.


Comments

Jurisdiction And The Federal Rules: Why The Time Has Come To Reform Finality By Inequitable Deadlines

Christopher W. Robbins

Over seventy years ago, the creation of the Federal Rules of Civil Procedure represented the triumph of equity over the often-arbitrary distinctions created by the common law pleading and code pleading systems that predated them. Despite equity’s expansion beyond pleading and into most areas of litigation, there still remains an area where the rules of procedure are inflexible and complex: the current system of post-trial motions and notices of appeal often creates “trap[s] for an unsuspecting litigant” during the transfer of a case to the court of appeals from the district court. Limitations on the power of the district court to hear motions after the judgment have long been viewed as having “jurisdictional significance,” and courts view the deadlines as “mandatory and jurisdictional.” This use of the term “jurisdictional” prevents resort to equitable principles that could excuse noncompliance in certain cases where strict litigation deadlines create harsh results.


The Rights Of Others: Protection And Advocacy Organizations' Associational Standing To Sue

Kelsey McCowan Heilman

Popular discussion of the standing doctrine has reached a fever pitch. A search for “standing to sue” in the New York Times archives for the last two years connects this phrase to a smorgasbord of hot political issues: global warming, warrantless wiretapping, torture, and the separation of church and state. For a relatively young doctrine, standing is incredibly pervasive in popular as well as judicial discourse.

This Comment explores the implications of the standing analysis for a particular group of plaintiffs: Protection and Advocacy Organizations (P&As)—a group of federally funded nonprofit corporations or state entities statutorily charged with protecting and advocating on behalf of individuals with disabilities.


In Memoriam

In Memoriam: William S. Stevens

We are sorry to note that William S. Stevens, member of the University of Pennsylvania Law School Class of 1975 and a former editor of the Law Review, passed away last week at the age of sixty. While a member of the Law Review, Stevens wrote a humorous anonymous “Aside” on the relationship between baseball’s infield fly rule and the common law that the New York Times hails as “one of the most celebrated and imitated analyses in American legal history.” In memory of Mr. Stevens, we post his famed note, The Common Law Origins of the Infield Fly Rule, 123 U. PA. L. REV. 1474 (1975), here. Our thoughts, prayers, and condolences are with his family.

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