Everand Logo

Welcome to Everand!

  • Discover millions of ebooks, audiobooks, and so much more with a free trial

    Only $11.99/month after trial. Cancel anytime.

    Yale Law Journal: Volume 121, Number 2 - November 2011
    Yale Law Journal: Volume 121, Number 2 - November 2011
    Yale Law Journal: Volume 121, Number 2 - November 2011
    Ebook411 pages5 hours

    Yale Law Journal: Volume 121, Number 2 - November 2011

    By Yale Law Journal

    ()

    Read preview

    About this ebook

    Yale Law Journal: Volume 121, Number 2 - November 2011, contents include:

    "Outcasting: Enforcement in Domestic and International Law," by Oona Hathaway & Scott J. Shapiro

    "Prods and Pleas: Limited Government in an Era of Unlimited Harm," by Benjamin Ewing & Douglas A. Kysar

    Note, "Baseline Framing in Sentencing," by Daniel M. Isaacs

    Comment, "The Anti-Federalists and Presidential War Powers," by Cameron O. Kistler

    LanguageEnglish
    PublisherQuid Pro, LLC
    Release dateApr 18, 2014
    ISBN9781610279666
    Yale Law Journal: Volume 121, Number 2 - November 2011
    Author

    Yale Law Journal

    The editors of The Yale Law Journal are a group of Yale Law School students, who also contribute Notes and Comments to the Journal’s content. The principal articles are written by leading legal scholars.

    Read more from Yale Law Journal

    Related to Yale Law Journal

    Related ebooks

    Law For You

    View More
    View More

    Related podcast episodes

    Related articles

    • Article

      Reimagining Legal Education

      Jun 27, 2019

      Reimagining Legal Education
      3 min read

    • Article

      Should I Go Back to School and Become a Lawyer?

      Mar 25, 2019

      Across the country there are 69 law schools accredited by the American Bar Association that offer part-time programs -- evening or weekend classes -- and normally require four years to complete. Approximately 1 in 10 graduates from ABA-approved schoo

      3 min read

    • Article

      Mental Health: Is That A Job For Schools?

      Jun 29, 2022

      Should mental health concerns be handled by schools?  Numerous statistics – and students themselves – point to the significant struggles many young people in the United States are experiencing. In an effort to help, federal and state governments are

      5 min read

    • Article

      2022 St. Louis Best Lawyers®

      Oct 26, 2021

      The Best Lawyers in America® is published by BL Rankings, LLC, Augusta, GA, and can be ordered directly from the publisher. For information call 803-648-0300; write 801 Broad Street, Suite 950, Augusta, GA. 30901; email info@bestlawyers.com; or visit

      24 min read

    • Article

      '24 Twenty St. Louis Best Lawyers® Featuring Some Of The Region's Top Legal Talent

      Jan 16, 2024

      CREDIT The Best Lawyers in America® and Best Lawyers: Ones to Watch® in America are published by BL Rankings, LLC, Augusta, Georgia, and can be ordered directly from the publisher. For information call 803-648-0300; write to 801 Broad St., Suite 950,

      46 min read

    • Article

      Mary Sanchez: Every Vote In America Is Now About Abortion

      Aug 12, 2022

      The pro-choice jubilation that overtook the state of Kansas is beginning to subside, as all victorious celebrations eventually do. What’s less clear is if the revelers fully grasp that they’re still running against howling headwinds. This is despite

      3 min read

    • Article

      St. Louis Best Lawyers®

      Oct 24, 2023

      CREDIT The Best Lawyers in America® and Best Lawyers: Ones to Watch® in America are published by BL Rankings, LLC, Augusta, GA. and can be ordered directly from the publisher. For information call 803-648-0300; write 801 Broad Street Suite 950, Augus

      36 min read

    • Article

      Wait Til’ Next Year

      Jul 24, 2020

      Wait Til’ Next Year
      3 min read

    • Article

      Wait Til’ Next Year

      Jul 24, 2020

      Wait Til’ Next Year
      3 min read

    • Article

      With Amy Coney Barrett, A Once-fringe Legal Philosophy Goes Mainstream

      Oct 6, 2020

      If Amy Coney Barrett is confirmed, law in the U.S. could shift substantially toward favoring religious liberty over all other rights.

      7 min read

    • Article

      2023 st. Louis Best Lawyers®

      Oct 25, 2022

      CREDIT The Best Lawyers in America® and Best Lawyers: Ones to Watch ™ in America are published by BL Rankings, LLC, Augusta, GA. and can be ordered directly from the publisher. For information call 803-648-0300; write 801 Broad Street Suite 950, Augu

      41 min read

    • Article

      Mary Sanchez: Every Vote In America Is Now About Abortion

      Aug 21, 2022

      The pro-choice jubilation that overtook the state of Kansas is beginning to subside, as all victorious celebrations eventually do. What's less clear is if the revelers fully grasp that they're still running against howling headwinds. This is despite

      3 min read

    Related categories

    Reviews for Yale Law Journal

    0 ratings

    0 ratings0 reviews

    What did you think?

    Tap to rate

    Review must be at least 10 words

      Book preview

      Yale Law Journal - Yale Law Journal

      THE YALE LAW JOURNAL

      NOVEMBER 2011

      VOLUME 121, NUMBER 2

      Yale Law School

      New Haven, Connecticut

      Yale Law Journal

      Smashwords edition: published by Quid Pro Books, at Smashwords. Copyright © 2011 by The Yale Law Journal Company, Inc. All rights reserved. This work or parts of it may not be reproduced, copied or transmitted (except as permitted by sections 107 and 108 of the U.S. Copyright Law and except by reviewers for the public press), by any means including voice recordings and the copying of its digital form, without the written permission of the print publisher.

      The publisher of various editions and formats is The Yale Law Journal, who exclusively authorized Quid Pro to digitally publish its issues in ebook editions; so published, for The Yale Law Journal, by Quid Pro Books. Available in major digital formats and at leading ebook retailers and booksellers.

      Quid Pro Books

      Quid Pro, LLC

      5860 Citrus Blvd., suite D-101

      New Orleans, Louisiana 70123

      www.quidprobooks.com

      Cataloging for ebook of Volume 121, Number 2:

      ISBN: 1610279662 (ePub)

      ISBN-13: 9781610279666 (ePub)

      CONTENTS

      ARTICLES

      OUTCASTING: ENFORCEMENT IN DOMESTIC AND INTERNATIONAL LAW

      By Oona Hathaway & Scott J. Shapiro

      (121 YALE L.J. 252)

      PRODS AND PLEAS: LIMITED GOVERNMENT IN AN ERA OF UNLIMITED HARM

      By Benjamin Ewing & Douglas A. Kysar

      (121 YALE L.J. 350)

      NOTE

      BASELINE FRAMING IN SENTENCING

      By Daniel M. Isaacs

      (121 YALE L.J. 426)

      COMMENT

      THE ANTI-FEDERALISTS AND PRESIDENTIAL WAR POWERS

      By Cameron O. Kistler

      (121 YALE L.J. 459)

      RESPONSES. The Yale Law Journal invites short papers responding to scholarship appearing in the Journal within the last year. Responses should be submitted to The Yale Law Journal Online at http://yalelawjournal.org/submissions.html. We cannot guarantee that submitted responses will be published. Those responses that are selected for publication will be edited with the cooperation of the author.

      The Yale Law Journal is published eight times a year (monthly from October through June, excluding February) by The Yale Law Journal Company, Inc. Editorial and general offices are located in the Sterling Law Building at Yale University. POSTMASTER: Send address changes to The Yale Law Journal, P.O. Box 208215, New Haven, Connecticut 06520-8215.

      SUBSCRIPTIONS. A year subscription for Volume 121 is $55.00 payable in advance (please see our website for overseas shipping charges). Remittance must be made by U.S. Dollar drafts payable at a U.S. bank. Unfortunately, we are not able to accept payments in cash or by credit card. Subscription requests received after the first issue of a volume has been printed will run for eight consecutive issues unless otherwise indicated by the subscriber. Subscription backstarting is not permitted to include prior volume years. Overseas delivery is not guaranteed.

      CLAIMS. Domestic claims for non-receipt of issues should be made within 90 days of the month of publication, overseas claims within 180 days; thereafter, the regular back issue rate will be charged for replacement. All subscriptions will be renewed automatically unless the subscriber provides timely notice of cancellation prior to the start of a new volume year. Address changes must be made at least two months before publication date. Please provide an old mailing label or the entire old address; the new address must include the ZIP code. Address changes or other requests for subscription information should be directed to the Business Manager.

      SINGLE AND BACK ISSUES. Each issue of Volume 121 of the Journal can be purchased prepaid from The Yale Law Journal Company, Inc. for $25 (check must accompany order). For Connecticut deliveries, add 6% state sales tax. Remittance must be made by U.S. Dollar drafts payable to a U.S. bank. Unfortunately, we are not able to accept payments in cash or credit card. To purchase back issues from Volumes 1-120, please contact William S. Hein and Company, Inc., 1285 Main Street, Buffalo, New York 14209, (800) 828-7571. Back issues can also be found in electronic format on HeinOnline (http://heinonline.org/).

      MANUSCRIPTS. The Journal invites the submission of unsolicited articles, essays, and book reviews. Manuscripts must be submitted online at http://yalelawjournal.org/submissions.html.

      COPYRIGHT. Copyright © 2011 by The Yale Law Journal Company, Inc. Requests for copyright permissions should be directed to Copyright Clearance Center, 222 Rosewood Drive, Danvers, MA 01923, (978) 750-8400, http://www.copyright.com/.

      PRODUCTION. Citations in the Journal conform to The Bluebook: A Uniform System of Citation (19th ed. 2010), copyright by The Columbia Law Review Association, The Harvard Law Review Association, the University of Pennsylvania Law Review, and The Yale Law Journal. The Journal is printed by Joe Christensen, Inc., in Lincoln, Nebraska. Periodicals postage paid at New Haven, Connecticut, and additional mailing offices. Publication number ISSN 00440094

      INTERNET ADDRESS. The Yale Law Journal’s homepage is located at http://www.yalelawjournal.org.

      YALE LAW SCHOOL

      OFFICERS OF ADMINISTRATION

      Richard Charles Levin, B.A., B.Litt., Ph.D., President of the University

      Peter Salovey, A.B., M.A., Ph.D., Provost of the University

      Robert C. Post, A.B., J.D., Ph.D., Dean

      Douglas Kysar, B.A., J.D., Deputy Dean

      S. Blair Kauffman, B.S., B.A., J.D., LL.M., M.L.L., Law Librarian

      Megan A. Barnett, B.A., J.D., Associate Dean

      Sharon C. Brooks, B.A., J.D., Assistant Dean

      Toni Hahn Davis, B.A., J.D., M.S.W., LL.M., Associate Dean

      Brent Dickman, B.B.A., M.B.A., Associate Dean

      Mark LaFontaine, B.A., J.D., Associate Dean

      Asha Rangappa, A.B., J.D., Associate Dean

      Mike K. Thompson, B.A., M.B.A., J.D., Associate Dean

      FACULTY EMERITI

      Guido Calabresi, B.S., B.A., LL.B., M.A., Dr.Jur., LL.D., D.Phil., H.Litt.D., D.Poli.Sci., Sterling Professor Emeritus of Law and Professorial Lecturer in Law

      Dennis E. Curtis, B.S., LL.B., Clinical Professor Emeritus of Law and Professorial Lecturer in Law

      Harlon Leigh Dalton, B.A., J.D., Professor Emeritus of Law

      Carroll L. Lucht, B.A., M.S.W., J.D., Clinical Professor Emeritus of Law, Supervising Attorney, and Professorial Lecturer in Law

      Mirjan Radovan Damaška, LL.B., Dr.Jur., Sterling Professor Emeritus of Law and Professorial Lecturer in Law

      Jan Ginter Deutsch, LL.B., Ph.D., Walter Hale Hamilton Professor Emeritus of Law and Professorial Lecturer in Law

      Owen M. Fiss, B.A., B.Phil., LL.B., Sterling Professor Emeritus of Law and Professorial Lecturer in Law

      Michael J. Graetz, B.B.A., LL.B., LL.D., Justus S. Hotchkiss Professor Emeritus of Law and Professorial Lecturer in Law

      Quintin Johnstone, B.A., J.S.D., Justus S. Hotchkiss Professor Emeritus of Law

      Carol M. Rose, B.A., M.A., J.D., Ph.D., Gordon Bradford Tweedy Professor Emeritus of Law and Organization, and Professorial Lecturer in Law

      Peter H. Schuck, B.A., M.A., J.D., LL.M., Simeon E. Baldwin Professor Emeritus and Professor (Adjunct) of Law

      John G. Simon, B.A., LL.B., LL.D., Augustus E. Lines Professor Emeritus of Law and Professorial Lecturer in Law

      Stephen Wizner, A.B., J.D., William O. Douglas Clinical Professor Emeritus of Law, Supervising Attorney, and Professorial Lecturer in Law

      FACULTY

      †  Bruce Ackerman, B.A., LL.B., Sterling Professor of Law and Political Science

      Muneer I. Ahmad, A.B., J.D., Clinical Professor of Law

      Anne L. Alstott, A.B., J.D., Professor of Law

      ‡  Akhil Reed Amar, B.A., J.D., Sterling Professor of Law

      Ian Ayres, B.A., J.D., Ph.D., William K. Townsend Professor of Law

      Jack M. Balkin, A.B., J.D., Ph.D., Knight Professor of Constitutional Law and the First Amendment

      Aharon Barak, LL.M., Dr.Jur., Visiting Professor of Law and Gruber Global Constitutionalism Fellow (fall term)

      Barton Beebe, B.A., Ph.D., J.D., Anne Urowsky Visiting Professor of Law (fall term)

      Raymond Brescia, B.A., J.D., Visiting Clinical Associate Professor of Law

      Lea Brilmayer, B.A., J.D., LL.M., Howard M. Holtzmann Professor of International Law

      †  Richard R.W. Brooks, B.A., M.A., Ph.D., J.D., Leighton Homer Surbeck Professor of Law

      ‡  Robert A. Burt, B.A., M.A., J.D., Alexander M. Bickel Professor of Law

      Guido Calabresi, B.S., B.A., LL.B., M.A., Dr.Jur., LL.D., D.Phil., H.Litt.D., D.Poli.Sci., Sterling Professor Emeritus of Law and Professorial Lecturer in Law

      ‡  Stephen Lisle Carter, B.A., J.D., William Nelson Cromwell Professor of Law

      ‡  Amy Chua, A.B., J.D., John M. Duff, Jr. Professor of Law

      Jules L. Coleman, B.A., M.S.L., Ph.D., Wesley Newcomb Hohfeld Professor of Jurisprudence and Professor of Philosophy

      Dennis E. Curtis, B.S., LL.B., Clinical Professor Emeritus of Law and Professorial Lecturer in Law

      Hanoch Dagan, LL.B., LL.M., J.S.D., Visiting Professor of Law and Oscar M. Ruebhausen Distinguished Senior Fellow (fall term)

      Harlon Leigh Dalton, B.A., J.D., Professor Emeritus of Law

      Mirjan Radovan Damaška, LL.B., Dr.Jur., Sterling Professor Emeritus of Law and Professorial Lecturer in Law

      Drew S. Days, III, B.A., LL.B., Alfred M. Rankin Professor Emeritus of Law and Professorial Lecturer in Law

      Jan Ginter Deutsch, B.A., LL.B., Ph.D., M.A., Walter Hale Hamilton Professor Emeritus of Law and Professorial Lecturer in Law

      Fiona Doherty, B.A., J.D., Visiting Clinical Associate Professor of Law

      ‡  Steven Barry Duke, B.S., J.D., LL.M., Professor of Law

      †  Robert C. Ellickson, A.B., LL.B., Walter E. Meyer Professor of Property and Urban Law

      Edwin Donald Elliott, B.A., J.D., Professor (Adjunct) of Law

      ‡  William N. Eskridge, Jr., B.A., M.A., J.D., John A. Garver Professor of Jurisprudence

      *  Daniel C. Esty, A.B., M.A., J.D., Hillhouse Professor of Environmental Law and Policy, School of Forestry & Environmental Studies; and Clinical Professor of Environmental Law and Policy, Law School

      Stanley Fish, B.A., M.A., Ph.D., Visiting Professor of Law and Oscar M. Ruebhausen Distinguished Senior Fellow (fall term)

      Owen M. Fiss, B.A., B.Phil., LL.B., Sterling Professor Emeritus of Law and Professorial Lecturer in Law

      ‡  James Forman Jr., A.B., J.D., Clinical Professor of Law

      Bryan Garsten, B.A., M.Phil., Ph.D., Professor (Adjunct) of Law (spring term)

      Heather K. Gerken, B.A., J.D., J. Skelly Wright Professor of Law

      ‡  Paul Gewirtz, B.A., J.D., Potter Stewart Professor of Constitutional Law

      Robert W. Gordon, A.B., J.D., Chancellor Kent Professor of Law and Legal History

      Michael J. Graetz, B.B.A., LL.B., LL.D., Justus S. Hotchkiss Professor Emeritus of Law and Professorial Lecturer in Law

      Dieter Grimm, LL.M., Dr.Jur., Visiting Professor of Law and Gruber Global Constitutionalism Fellow (spring term)

      Lani Guinier, B.A., J.D., Visiting Professor of Law (fall term)

      ‡  Henry B. Hansmann, A.B., J.D., Ph.D., Augustus E. Lines Professor of Law

      Robert D. Harrison, B.A., J.D., Ph.D., Lecturer in Legal Method

      Oona Hathaway, B.A., J.D., Gerard C. and Bernice Latrobe Smith Professor of International Law

      Kristin Henning, B.A., J.D., LL.M., Sidley Austin-Robert D. McLean ’70 Visiting Clinical Professor of Law (spring term)

      Daniel E. Ho, B.A., A.M., Ph.D., J.D., Maurice R. Greenberg Visiting Professor of Law (spring term)

      Quintin Johnstone, B.A., J.S.D., Justus S. Hotchkiss Professor Emeritus of Law and Professorial Lecturer in Law

      Christine Jolls, B.A., J.D., Ph.D., Gordon Bradford Tweedy Professor of Law and Organization

      *  Dan M. Kahan, B.A., J.D., Elizabeth K. Dollard Professor of Law

      Paul W. Kahn, B.A., J.D., Ph.D., Robert W. Winner Professor of Law and the Humanities, and Director, Orville H. Schell, Jr. Center for International Human Rights

      Pamela S. Karlan, B.A., J.D., Visiting Professor of Law (fall term)

      S. Blair Kauffman, B.S., B.A., J.D., LL.M., M.L.L., Law Librarian and Professor of Law

      Daniel Kevles, B.A., Ph.D., Professor (Adjunct) of Law (spring term)

      Alvin K. Klevorick, B.A., M.A., Ph.D., John Thomas Smith Professor of Law and Professor of Economics

      *  Harold Hongju Koh, A.B., B.A., J.D., M.A., Martin R. Flug ’55 Professor of International Law

      *  Anthony Townsend Kronman, B.A., J.D., Ph.D., Sterling Professor of Law

      Douglas Kysar, B.A., J.D., Deputy Dean and Joseph M. Field ’55 Professor of Law

      John H. Langbein, A.B., LL.B., Ph.D., Sterling Professor of Law and Legal History

      Sanford Levinson, B.A., Ph.D., J.D., Visiting Professor of Law (fall term)

      *  Yair Listokin, A.B., M.A., Ph.D., J.D., Associate Professor of Law

      Carroll L. Lucht, B.A., M.S.W., J.D., Clinical Professor Emeritus of Law, Supervising Attorney, and Professorial Lecturer in Law

      Jonathan R. Macey, A.B., J.D., Sam Harris Professor of Corporate Law, Corporate Finance, and Securities Law

      Miguel Maduro, Dr.Jur., Visiting Professor of Law and Gruber Global Constitutionalism Fellow (fall term)

      †  Daniel Markovits, B.A., M.Sc., D.Phil., J.D., Professor of Law

      ‡  Jerry Louis Mashaw, B.A., LL.B., Ph.D., Sterling Professor of Law

      Tracey L. Meares, B.S., J.D., Walton Hale Hamilton Professor of Law

      Noah Messing, B.A., J.D., Lecturer in the Practice of Law and Legal Writing

      Jeffrey A. Meyer, B.A., J.D., Visiting Professor of Law

      Samuel Moyn, B.A., M.A., Ph.D., J.D., Irving S. Ribicoff Visiting Professor of Law (spring term)

      Nicholas Parrillo, A.B., M.A., J.D., Associate Professor of Law

      †  Jean Koh Peters, A.B., J.D., Sol Goldman Clinical Professor of Law and Supervising Attorney

      Robert C. Post, A.B., J.D., Ph.D., Dean and Sol & Lillian Goldman Professor of Law

      J.L. Pottenger, Jr., A.B., J.D., Nathan Baker Clinical Professor of Law and Supervising Attorney

      †  Claire Priest, B.A., J.D., Ph.D., Professor of Law

      ‡  George L. Priest, B.A., J.D., Edward J. Phelps Professor of Law and Economics and Kauffman Distinguished Research Scholar in Law, Economics, and Entrepreneurship

      William Michael Reisman, B.A., J.S.D., Myres S. McDougal Professor of International Law

      Judith Resnik, B.A., J.D., Arthur Liman Professor of Law

      Roberta Romano, B.A., M.A., J.D., Sterling Professor of Law and Director, Yale Law School Center for the Study of Corporate Law

      Carol M. Rose, B.A., M.A., J.D., Ph.D., Gordon Bradford Tweedy Professor Emeritus of Law and Organization, and Professorial Lecturer in Law

      †  Susan Rose-Ackerman, B.A., Ph.D., Henry R. Luce Professor of Jurisprudence (Law School and Department of Political Science)

      Jed Rubenfeld, A.B., J.D., Robert R. Slaughter Professor of Law

      Peter H. Schuck, B.A., M.A., J.D., LL.M., Simeon E. Baldwin Professor Emeritus of Law and Professor (Adjunct) of Law

      Vicki Schultz, B.A., J.D., Ford Foundation Professor of Law

      †  Alan Schwartz, B.S., LL.B., Sterling Professor of Law

      Ian Shapiro, B.Sc., M.Phil., Ph.D., J.D., Professor (Adjunct) of Law (spring term)

      Scott J. Shapiro, B.A., J.D., Ph.D., Professor of Law and Philosophy

      Robert J. Shiller, B.A., Ph.D., Professor (Adjunct) of Law (fall term)

      †  Reva Siegel, B.A., M.Phil., J.D., Nicholas deB. Katzenbach Professor of Law

      James J. Silk, A.B., M.A., J.D., Clinical Professor of Law, Allard K. Lowenstein International Human Rights Clinic, and Executive Director, Orville H. Schell, Jr. Center for International Human Rights

      John G. Simon, B.A., LL.B., LL.D., Augustus E. Lines Professor Emeritus of Law and Professorial Lecturer in Law

      Robert A. Solomon, B.A., J.D., Clinical Professor of Emeritus of Law

      Kate Stith, A.B., M.P.P., J.D., Lafayette S. Foster Professor of Law

      Alec Stone Sweet, B.A., M.A., Ph.D., Leitner Professor of International Law, Politics, and International Studies

      Gerald Torres, A.B., J.D., LL.M., Maurice R. Greenberg Visiting Professor of Law (fall term)

      James Q. Whitman, J.D., Ph.D., Ford Foundation Professor of Comparative and Foreign Law

      Ralph Karl Winter, Jr., B.A., LL.B., Professor (Adjunct) of Law

      Michael J. Wishnie, B.A., J.D., Clinical Professor of Law and Director, Jerome N. Frank Legal Services Organization

      †  John Fabian Witt, B.A., J.D., Ph.D., Allen H. Duffy Class of 1960 Professor of Law

      Stephen Wizner, A.B., J.D., William O. Douglas Clinical Professor Emeritus of Law, Supervising Attorney, and Professorial Lecturer in Law

      Howard V. Zonana, B.A., M.D., Professor of Psychiatry and Clinical Professor (Adjunct) of Law

      *  On leave of absence, 2010–2011.

      †  On leave of absence, fall term, 2010–2011.

      ‡  On leave of absence, spring term, 2011.

      LECTURERS IN LAW

      John C. Balzano, B.A., M.A., J.D.

      Nicholas Bramble, B.A., M.A., J.D.

      Adam S. Cohen, A.B., J.D.

      Linda Greenhouse, B.A., M.S.L., Joseph Goldstein Lecturer in Law

      Lucas Guttentag, A.B., J.D.

      Jamie P. Horsley, M.A., J.D.

      Katherine Kennedy, A.B., J.D., Timothy B. Atkeson Environmental Lecturer in Law

      Theresa J. Lee, B.A., M.A., J.D.

      Jeffrey M. Prescott, B.A., J.D., (on leave)

      Jamin Raskin, B.A., J.D.

      Sia Sanneh, B.A., M.A., J.D.

      Daniel Wade, B.A., M.A., M.Div., M.S., J.D.

      VISITING LECTURERS IN LAW

      Josh Abramowitz, B.A., J.D.

      Guillermo Aguilar-Alvarez, Lic. en Derecho (J.D.)

      Stephen Bright, B.A., J.D., Harvey Karp Visiting Lecturer in Law

      G. Eric Brunstad, Jr., B.A., J.D., LL.M.

      Cynthia Carr, B.A., J.D., LL.M.

      Brett Cohen, B.A., J.D.

      Eugene R. Fidell, B.A., LL.B., Florence Rogatz Visiting Lecturer in Law

      Lawrence J. Fox, B.A., J.D., George W. and Sadella D. Crawford Visiting Lecturer in Law

      Eugene Garver, A.B., Ph.D.

      Nancy Gertner, B.A., M.A., J.D.

      Frank Iacobucci, LL.B., LL.M., Gruber Global Constitutionalism Fellow and Visiting Lecturer in Law

      Benjamin Heineman, B.A., B.Litt., J.D.

      Howard Kahn, A.B., Ph.D.

      Brett M. Kavanaugh, B.A., J.D.

      Mark R. Kravitz, B.A., J.D.

      Daryl J. Levinson, A.B., M.A., J.D.

      Barbara Marcus, B.A., M.S., Ph.D.

      Braxton McKee, M.D.

      Andrew J. Pincus, B.A., J.D.

      Charles A. Rothfeld, A.B., J.D.

      John M. Samuels, B.A., J.D., LL.M.

      David A. Schultz, B.A., M.A., J.D.

      Michael Solender, B.A., J.D.

      Ko-Yung Tung, B.A., J.D.

      Stefan Underhill, B.A., J.D.

      Neil Walker, LL.B., Ph.D.

      John M. Walker, Jr., B.A., J.D.

      THE YALE LAW JOURNAL

      VOLUME 121

      Outcasting: Enforcement in Domestic and International Law

      Oona Hathaway & Scott J. Shapiro

      121 YALE L.J. 252 (2011)

      Outcasting: Enforcement in Domestic and International Law

      OONA HATHAWAY & SCOTT J. SHAPIRO

      ABSTRACT. This Article offers a new way to understand the enforcement of domestic and international law that we call outcasting. Unlike the distinctive method that modern states use to enforce their law, outcasting is nonviolent: it does not rely on bureaucratic organizations, such as police or militia, that employ physical force to maintain order. Instead, outcasting involves denying the disobedient the benefits of social cooperation and membership. Law enforcement through outcasting in domestic law can be found throughout history—from medieval Iceland and classic canon law to modern-day public law. And it is ubiquitous in modern international law, from the World Trade Organization to the Universal Postal Union to the Montreal Protocol. Across radically different subject areas, international legal institutions use others (usually states) to enforce their rules and typically deploy outcasting rather than physical force. Seeing outcasting as a form of law enforcement not only helps us recognize that the traditional critique of international law—that it is not enforced and is therefore both ineffective and not real law—is based on a limited and inaccurate understanding of law enforcement. It also allows us to understand more fully when and how international law matters.

      AUTHORS. Gerard C. and Bernice Latrobe Smith Professor of International Law, Yale Law School, and Professor of Law and Philosophy, Yale Law School, respectively. We thank Tai-Heng Cheng, Heather Gerken, Ryan Goodman, David Singh Grewal, Jacob Hacker, Richard Helmholz, Alvin Klevorick, Robert Keohane, Doug Kysar, John Langbein, Tracey Meares, William Miller, Nicholas Parrillo, Gregory Shaffer, Ruti Teitel, and participants in the faculty workshop at Yale Law School, the Hauser Colloquium at NYU School of Law, the New York Law School Global Law and Justice Colloquium, the Columbia Law School Legal Theory Workshop, and the International Law and Philosophy Conference at the University of Pennsylvania for helpful feedback. We thank Katie Chamblee, Sinead Hunt, Alex Iftimie, Danielle Lang, Dermot Lynch, Julia Malkina, and Sara Aronchick Solow for their excellent research assistance. We are grateful to Teresa Miguel and Dick Hasbany for their outstanding research support.

      ARTICLE CONTENTS

      I. SKEPTICISM ABOUT INTERNATIONAL LAW

      A.  Austin’s Objection

      B.  The Internality Objection

      C.  The Brute Force Objection

      D.  The Modern State Conception

      II. LAW ENFORCEMENT IN THE MODERN STATE CONCEPTION

      A.  Primary and Secondary Enforcement

      B.  Does International Law Satisfy the Modern State Conception?

      C.  Is the Modern State Conception Valid?

      III. LAW WITHOUT POLICE

      A.  Medieval Iceland

      B.  Classical Canon Law

      C.  Feature or Bug?

      IV. OUTCASTING AND EXTERNAL ENFORCEMENT IN INTERNATIONAL LAW

      A.  External Physical Enforcement

      B.  Internal Outcasting

      C.  External Outcasting

      V. EXTERNAL OUTCASTING IN INTERNATIONAL LAW

      A.  Describing Variation in External Outcasting

      1.  Permissive or Mandatory?

      2.  Adjudicated or Nonadjudicated?

      3.  In-Kind or Non-in-Kind?

      4.  Proportional or Nonproportional?

      5.  First Parties Only or Third Parties Included?

      B.  Explaining Variation in External Outcasting

      1.  Outcasting Is Costly? Make It Mandatory

      2.  The Regime Creates Public, Not Private, Benefits? Use Cross-Countermeasures

      3.  Outcasting Is Too Attractive? Require Adjudication or Proportional Sanctions

      4.  First-Party Outcasting Is Ineffective? Bring in Third Parties

      C.  Eight Externalized Outcasting Regimes

      1.  Simple Outcasting

      2.  One Step Removed: Adjudicated

      3.  Two Steps Removed: Adjudicated and Non-in-Kind

      4.  Three Steps Removed: Adjudicated, Nonproportional, and Third Parties Included

      5.  Three Steps Removed: Mandatory, Non-in-Kind, and Third Parties Included

      6.  Four Steps Removed: Mandatory, Adjudicated, Non-in-Kind, and Third Parties Included

      7.  Four Steps Removed: Adjudicated, Non-in-Kind, Nonproportional, and Third Parties Included

      8.  Five Steps Removed: Mandatory, Adjudicated, Non-in-Kind, Nonproportional, and Third Parties Included

      D.  The Limits of Externalized Outcasting

      1.  External Outcasting Relies on Cooperative Benefits

      2.  Outcasting Favors the Powerful over the Weak

      3.  Outcasting Is Nonviolent

      VI. INTERNATIONAL LAW ENFORCEMENT REIMAGINED

      A.  Examining International Law as Law

      B.  Reimagining Possibilities in International Law

      C.  The Sovereigntist Fallacy

      Is international law law? In 2009, the American Society of International Law organized a panel at its annual meeting to discuss the question. Most of the panelists, however, began by expressing indignation that such a panel had even been convened. Andrew Guzman thought the question was a futile one;¹ Thomas Franck was surprised that we have gathered here again at the beginning of a new political era to ask this tired old question;² and José Alvarez was appalled that we are still discussing this 1960’s chestnut of a question.³ Instead, they agreed, the more interesting question—indeed, the proper organizing question of the field—is, how well does international law do in its effort to influence state behavior.⁴

      We understand this reaction, but we do not share it. The question of whether international law is law matters a great deal. Most fundamentally, it matters from the moral point of view. Law’s moral import follows from a basic truth accepted by all but hardcore anarchists: namely, that legal systems are morally valuable institutions.⁵ Thus, whether we ought to respect, support, or obey international law depends in part on whether it possesses those properties that make legal regimes worthy of our esteem and allegiance—that is, on whether it is really law (an implication, by the way, not lost on critics who deny its legality). But there is an additional—and, we shall see, deeply illuminating—reason why this jurisprudential question ought to be engaged. As we will show in this Article, responding to the critics who argue that international law is not law allows us to make substantial new progress in answering the very question international law scholars do care about: whether and how international law affects state behavior.

      The reason is simple. The principal objection made by critics of international law is that international law cannot be real law because it cannot matter in the way that real law must matter. In particular, they argue that international law cannot matter in the way it must to be law because it lacks mechanisms of coercive enforcement. Anthony D’Amato describes this objection as follows:

      Many serious students of the law react with a sort of indulgence when they encounter the term international law, as if to say, "well, we know it isn’t really law, but we know that international lawyers and scholars have a vested professional interest in calling it ‘law.’" Or they may agree to talk about international law as if it were law, a sort of quasi-law or near-law. But it cannot be true law, they maintain, because it cannot be enforced: how do you enforce a rule of law against an entire nation, especially a superpower such as the United States or the Soviet Union?⁶

      On this objection, international law cannot be real law because real law must be capable of affecting behavior through the threat and exercise of physical coercion. Since international law lacks mechanisms of physically coercive enforcement, it cannot affect behavior in the right way and hence cannot be a real legal system. It follows that answering the skeptic who doubts that international law is law also answers the skeptic who doubts that international law matters. For in order to respond to the first skeptic, one must show that international law is capable of affecting behavior in the right way to be law. But once one shows that international law matters in the right way, one ipso facto shows that it matters!

      No doubt, one could try to answer the question of whether international law matters directly without engaging the central objection to international law as law. But there is a crucial advantage to addressing the former question via the latter. For examining whether international law is law first requires one to figure out all the ways in which legal systems must be capable of affecting behavior to be law. This inquiry opens up a fascinating range of new possibilities about how law might matter to its subjects. With the help of the fuller account that results, we will not only see that international law is capable of affecting state behavior in the right way to be law; more significantly, it is capable of affecting state behavior in ways that have previously eluded international law scholars. Though international law does not matter to states in the same way that much modern domestic law does, we will show that it matters to them nonetheless. International law has mechanisms of law enforcement and these mechanisms give states reason not to violate the law.

      Jurisprudence, then, can be an invaluable tool for empirical investigations of legal phenomena, for the former aims to uncover logical space often neglected by the latter. Indeed, the temptation to overlook important areas of jurisprudential space when analyzing international law is especially strong. After all, the legal systems with which we are most familiar are domestic. In our culture, modern state regimes are the paradigm instances of law. The inclination to focus exclusively on the state and to understand all legal phenomena through this lens is thus completely understandable. But it is also, we argue, a grave mistake.

      In this Article, we show that critics of international law have succumbed to this temptation and have taken modern legal systems as their exclusive model for law. They have adopted what we call the Modern State Conception of law. The Modern State Conception maintains that regimes are legal systems only when they possess the distinctive capacities of the modern state; namely, they possess a monopoly over the use of force within a territory and use this monopoly to enforce their rules. In the domestic context, the monopoly is shared by a host of interlocking bureaucratic organizations that employ intimidation and violence as a method of enforcement, such as police, militia, prosecutorial agencies, and correctional institutions. In the Modern State Conception, then, law matters through the threat and exercise of violence by such organizations. Skepticism about international law naturally follows from this conception given that international law does not possess these bureaucratic institutions. Famously, it does not have its own army or police force. While international prosecutorial agencies and prisons have sprung up in recent years, nothing resembling the modern state’s enforcement apparatus exists or is likely to exist for the foreseeable future. If law must matter through the threat and exercise of physical coercion by an interlocking system of bureaucratic institutions, then international law cannot matter in the right way to be law.

      We argue that the concept of law that lies behind this critique of international law is seriously flawed because of its limited understanding of how rules must be capable of affecting behavior in order to count as law. Its failure stems not simply from the fact that the Modern State Conception insists that legal rules only affect behavior when they are enforced; more importantly, it falters by adopting an excessively narrow conception of law enforcement itself. The Modern State Conception errs by insisting that law may only be enforced in the same way that it is enforced in modern states. First, it demands that the law can matter only if it is enforced internally, i.e., by the regime itself. Second, it requires that law matter only if it is enforced violently, i.e., through the threat and exercise of physical force.

      This narrow understanding of law enforcement ignores regimes that outsource enforcement to external parties. We argue that, contrary to the Modern State Conception, as long as some party is tasked with using coercion in order to ensure compliance with the rules, the regime itself need not perform the role. We call this externalized enforcement. Moreover, we argue that the coercion

      Enjoying the preview?
      Page 1 of 1