I have been engaged in a review of documents that in my opinion constitute the travaux préparatoires to the 1967 Refugee Protocol. This repository is unexpectedly rich, and in the preceding three blog posts devoted to this research, I have made a number of claims about its historical, political, sociological and legal importance. First, these […]
I am grateful to the contributors to this Symposium for such thoughtful pieces, as well as to the editors of the Yale Journal on Regulation for putting the Symposium together. The ALI membership is scheduled to vote on the current draft this May, so I will use this concluding post to respond to just a […]
The Restatement of Consumer Contracts provides a systematic formulation of the common law rules guiding courts in resolving disputes over consumer contracts. These rules are distilled from the analysis of longstanding common law doctrines, as well as a careful reading of more recent leading court decisions, from which we elicit the governing principles. We clarify […]
“Empiricism and Privacy Policies in the Restatement of Consumer Contract Law” (Empiricism) asks the wrong question and takes the wrong approach to answering that question. A second article in same issue of the Journal, “The Faulty Foundation of the Draft Restatement of Consumer Contracts” (Faulty Foundation) has similar flaws.[1] Both articles misconceive and overstate the […]
The American Law Institute’s Draft Restatement of the Law of Consumer Contracts is a highly controversial project that has drawn sharp criticism from state attorneys general, consumer advocates, civil rights and labor organizations, and even a former ALI Vice-Chair, Elizabeth Warren, who is now a Presidential candidate. Reasonable minds might differ regarding the normative choices […]
The Trump administration’s claims and actions in regards to refugees and asylum seekers have led lawmakers, lawyers and the courts to consider a crucial question: What are the US government’s obligations towards refugees and asylum seekers? There are rights that are clearly stated in such work as Hathaway and Neve, which are rooted in the […]
The American Law Institute is considering the adoption of a Restatement of Consumer Contracts. (The present version of the proposed Restatement is Council Draft No. 5, and this article is based on that Draft.) The proposed Restatement is opposed by the Attorneys General of California, Delaware, the District of Columbia, Illinois, Iowa, Maine, Maryland, Massachusetts, […]
How would one go about the process of discovering the law related to a field such as consumer contracts in order to incorporate it into a “Restatement”? Presumably, a scholar would be concerned with the reasoning of courts as they apply legal principles “on the ground,” a practice that transcends recitations of doctrine classified in […]
All around the world, refugees who are “lucky” enough to be rescued at sea, or to cross the border into a host country, are finding that the safe haven from persecution that they long for is being replaced with uncertainty (Malta), detention of children (Nauru), inhumane refugee camp conditions (Syria), financial ruin (Israel), forced return […]
The draft Restatement of the Law of Consumer Contracts invokes six quantitative studies of judicial decisions. Each study seeks to collect all available decisions on a legal question, published and unpublished; codes those decisions for factors such as issue, outcome, procedural posture, jurisdiction, and citations; and analyzes the coded data to determine majority rules, trends, […]
I have amassed close to a thousand pages of letters, minutes of meetings, memos and reports that from repositories of the UNHCR, the Rockefeller Foundation, the Carnegie Foundation, the Swiss archives, as well as various university library repositories. They offer precise details concerning the negotiations that produced the 1967 Protocol to the 1951 Geneva Convention, […]
How to explain Lucia v. SEC? The question presented—whether the Constitution requires the Securities and Exchange Commission itself to appoint its ALJs, rather than delegating that appointment authority to its Human Resources Department—is as a practical matter obsolete, because the agency has now adopted the view, rightly or wrongly, that the Commissioners themselves must do […]
Among the structural provisions contained in the Constitution, the Appointments Clause seems at first blush to be the one least susceptible to interpretive confusion. The Clause provides that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . all [ ] Officers of the United States” whose appointments […]
And . . . that’s a wrap. Thank you to the many commentators who participated in the Notice & Comment symposium over the past two weeks regarding the Supreme Court’s upcoming consideration of the Appointments Clause in Lucia v. SEC. The Court will hear oral argument in the case on Monday, April 23. In Lucia, […]
We begin with first principles: the Constitution created three branches of government. The legislative and executive branches are periodically checked by the electorate. To make that electoral check work for the executive branch, however, the one official actually accountable to voters, the president, is supposed to be able to supervise it. As James Madison noted […]