Benjamin Ewing and Douglas Kysar’s article, Prods and Pleas, discusses one benefit of the fragmented American governance system: the opportunity for institutions to influence the agendas of other, more powerful institutions. The authors illustrate this point with an extensive discussion of the potential for common law nuisance cases to direct congressional attention to the issue of climate change. Their general point is well taken, but they focus too heavily on the common law rather than the more important judicial role in public law, and they mention only in passing the role of states as independent policy centers. Furthermore, besides nudging Congress or the executive branch, public law litigation and state legislative activity can also help fill the gaps created by congressional or presidential policy defaults.

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This Essay comments on Benjamin Ewing and Douglas A. Kysar’s article, Prods and Pleas: Limited Government in an Era of Unlimited Harm. Ewing and Kysar suggest that we augment the traditional conception of constitutional “checks and balances” with one of “prods and pleas,” i.e., that different branches of government can provide incentives to induce action from other branches. They use federal climate nuisance litigation as an example of how such prods and pleas can and should operate. In the existing political climate, I am skeptical that governmental branches listen to reasoned arguments from other branches; thus, I argue that “pleas” will be ineffective. Ewing and Kysar’s theory of prods, however, contains an important insight. Branches often respond to political incentives, such that when one branch reaches a decision that undermines the political goals of key actors in other branches (a “prod”), action is possible. In this Age of Dysfunction, when one of the major American political parties seeks to paralyze legislative action, I suggest three areas where judicial prodding might be appropriate: 1) where legislation is blocked by a filibuster; 2) where opposition to legislation rejects science; and 3) where the legislative process produces results that discriminate against diffuse and invisible (and thus powerless) groups. I then use Ewing and Kysar’s example of climate change policy and argue that under current circumstances, judicial prodding is, in fact, appropriate.

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This Essay argues that we have been undergoing a profound sociocultural transformation over the last several centuries, which relates to the emergence of international law. This transformation is every bit as fundamental as those we once went through when transitioning from hunter-gatherer forms of life (which did not yet have legal systems or engage a distinctive sense of legal obligation) to more sedentary forms of agricultural life (with larger population densities, incipient domestic legal institutions, and—ultimately—an emergent distinction between morality and law). The primary mechanism that has been supporting this transformation is “outcasting”—as Oona Hathaway and Scott Shapiro have recently defined the term in their Yale Law Journal article of the same name. This Essay argues that outcasting provides the evolutionary stability conditions for a distinctive and emergent sense of international legal obligation in us. This shared sense of obligation is one of the basic preconditions for a genuine de facto system of international law—a fact that has important normative implications for how to evaluate international law.

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121 Yale L.J. 944 (2012).

In Padilla v. Kentucky, the Supreme Court held that a lawyer’s failure to advise her noncitizen client of the deportation consequences of a guilty plea constitutes deficient performance of counsel in violation of a defendant’s Sixth Amendment rights. In the plea context, defendants are also protected by the Fifth Amendment privilege against self- incrimination and the Due Process Clause, which requires that judges and defendants engage in a conversation regarding the consequences of the plea—the so-called “plea colloquy”—before the defendant can enter a valid guilty plea.

In many plea colloquies, judges issue general warnings to defendants regarding the immigration consequences of a guilty plea. Since Padilla, a number of lower courts have held that such general court warnings prevent a defendant from proving prejudice and prevailing on an ineffective assistance of counsel claim where there might otherwise be a Padilla Sixth Amendment violation.

This Note argues that those rulings mistakenly conflate the role of the court in a Fifth Amendment plea colloquy and the role of counsel under the Sixth Amendment and, further, that they misread the clear directives of Padilla. In the plea context, the court and defense counsel serve complementary but distinct functions in our constitutional structure; neither can replace the other, and the failure of either court or counsel constitutes a breakdown in our system. Circumscribing Padilla’s requirements by allowing plea colloquies to “cure” the prejudice created by Sixth Amendment Padilla violations is problematic because the Fifth Amendment plea colloquy provides significantly less protection to criminal defendants. Thus, the substitution of the plea colloquy for advice from counsel will substantially undercut the Padilla decision.

This Feature considers the debts of quasi-sovereign states in light of proposals to let them file for bankruptcy protection. States that have ceded some but not all sovereign prerogatives to a central government face distinct challenges as debtors. It is unhelpful to analyze these challenges mainly through the bankruptcy lens. State bankruptcy posits an institutional fix for a problem that remains theoretically undefined and empirically contested. I suggest a way of mapping the problem that does not work back from a solution. I highlight the implications of sovereign immunity, immortality, concurrent authority, macroeconomic policy, and democratic accountability for quasi-sovereign debt management. Along with default, fiscal transfers, and ad- hoc renegotiation, bankruptcy is one of several paths to reduce public debt overhang, but not necessarily the best path to state rehabilitation. Bankruptcy centers on coordination failures and contractual liabilities, when neither is especially salient in quasi-sovereign debt. It holds no special advantage against moral hazard from fiscal federalism and sovereign immunity. Even so, recent bankruptcy proposals have started a useful conversation joining previously disparate scholarship about credit market institutions, sovereign debt, fiscal federalism, and local government. The conversation should refocus on the problem of quasi-sovereign debt.

Recent state and municipal budget crises have generated a great deal of consternation among market participants and policymakers; they have also led scholars to debate the merits of bailouts or other forms of debt relief. This Essay considers why the mechanisms that were supposed to control state and local fiscal behavior ex ante have not worked. In the aftermath of the state and municipal debt crises of the nineteenth century, states adopted a series of constitutional reforms intended to constrain state and local fiscal behavior. In addition, the debt markets and the Tieboutian market in jurisdictions should theoretically prevent states and municipalities from overspending. Neither the fiscal constitution in the states nor the markets have prevented state and local fiscal difficulties, however; indeed, they have arguably contributed to those difficulties. Nevertheless, much of the current debate over bailouts and state bankruptcy reprises the longstanding skepticism of ordinary state and local political processes. This Essay argues that this distrust of local democratic decisionmaking is unwarranted, that efforts to constrain fiscal politics are destined to fail, and that the solution to state and local fiscal crises is largely a matter of politics and not a matter of institutional design.

The burden of proof is a central feature of all systems of adjudication, yet one that has been subject to little normative analysis. This Article examines how strong evidence should have to be in order to assign liability when the objective is to maximize social welfare. In basic settings, there is a tradeoff between deterrence benefits and chilling costs, and the optimal proof requirement is determined by factors that are almost entirely distinct from those underlying the preponderance of the evidence rule and other traditional standards. As a consequence, these familiar burden of proof rules have some surprising properties, as do alternative criteria that have been advanced. The Article also considers how setting the proof burden interacts with other features of legal system design: the determination of enforcement effort, the level of sanctions, and the degree of accuracy of adjudication. It compares and contrasts a variety of legal environments and methods of enforcement, explaining how the appropriate proof requirements differ qualitatively across contexts. Most of the questions raised and answers presented differ in kind—as well as in result—from those in prior literature.

In Patent Inflation, I argued that the asymmetry in Federal Circuit review of Patent and Trademark Office (PTO) decisions would lead over time to inflation in the boundaries defining what inventions are patentable. In short essays, Professor Arti Rai and Lisa Ouellette have offered valuable commentary, including both qualitative (Rai) and quantitative (Ouellette) evidence bearing on the question of inflation. In this brief response, I explain how their evidence is consistent with—indeed, bolsters—the theory presented in Patent Inflation. Direct Federal Circuit reversals of PTO decisions make up only a small portion of that court’s caseload. But those cases have exerted outsized influence on the development of the law, particularly across a number of the most significant patent doctrines. This is just as Patent Inflation would predict.

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