Monthly Archives: April 2010

Rethinking “International Law”

Jack Goldsmith and Daryl Levinson, Law for States: International Law, Constitutional Law, Public Law, 122 Harv. L. Rev. 1792 (2009).

It is a staple of the international law literature that international law is not or might not “really be law” because, among other things, it lacks what H.L.A. Hart refers to as a “rule of recognition.”  The contrast is most stark when one compares international law with domestic or municipal law.  In the case of the latter, there is widespread convergence of opinion on valid sources of law and even relative agreement about how to construe those sources.  It is the absence of such convergence that leads some (e.g., “realists” who maintain that power is the best explanation for the behavior of states) to conclude that international law is not law at all.

And what of constitutional law?  The conventional wisdom is that domestic constitutional law is not only law, it is perhaps the most important example of domestic law.  Constitutional law may not be as “solid” as municipal law, but it is certainly much more like “law” than international law could ever hope to be.  As Goldsmith and Levinson unassumingly put the matter, “[t]his Article questions whether these apparent differences between international and constitutional law really run as deep as is commonly supposed.” (1794) Continue reading "Rethinking “International Law”"

Time to Rethink Prudent Investor Laws?

Stewart E. Sterk, Rethinking Trust Law Reform: How Prudent is Modern Prudent Investor Doctrine?, 95 Cornell L. Rev. (forthcoming 2010), available at SSRN.
Jeffrey Cooper

Jeffrey Cooper

With the stock market of recent years dashing so many hopes and dreams, investors are all asking the same questions:  How could we have let this happen?  How can we be sure it won’t happen again?  Included among those asking these questions are the beneficiaries of countless trusts who have witnessed significant declines in the value of their trust portfolios.  In his article “Rethinking Trust Law Reform: How Prudent is Modern Prudent Investor Doctrine?,” Professor Stewart E. Sterk joins this search for answers, ultimately concluding that modern prudent investor laws fail to adequately protect trust beneficiaries in troubled economic times.

Professor Sterk’s article consists of three major Parts.  In Part I, Professor Sterk lays the historical framework for his analysis by summarizing the evolution of laws governing trust investment management.  In particular, he explores how two widely-accepted economic theories regarding the behavior of financial markets, modern portfolio theory (“MPT”) and the efficient capital market hypothesis (“ECMH”), came to influence trust investment law.  Sterk chronicles how both the Restatement (Third) of Trusts and the Uniform Prudent Investor Act wholeheartedly embraced MPT and ECMH in a quest to encourage the investment of trust funds in the manner these theories suggested would maximize the economic interests of trust beneficairies. Continue reading "Time to Rethink Prudent Investor Laws?"

Another Ride on Vehicles in the Park

Frederick Schauer, A Critical Guide to Vehicles in the Park, 83 N.Y.U. L. Rev. 1109 (2008).

“No vehicles in the park”—this deceptively simple rule has commanded the attention of legal theorists ever since the mid-twentieth century tussle between jurisprudential heavyweights Lon Fuller and H.L.A. Hart.  “It is the most famous hypothetical in the common law world,” leads Frederick Schauer, in his terrific analysis of the debate.   Schauer lays out the position of each protagonist, he explains how their respective positions are linked to (and detachable from) their broader theories of law, he indicates what each got right and each got wrong, and he identifies the relevance of the debate to central issues in legal theory and judging today.

“A Critical Guide” is admirably clear, it delivers a passel of insights, it is leavened with dashes of humor, and it comes in at an efficient 35 pages.  Schauer draws out links to legal realism and the legal process school, to Hart’s later engagement with Ronald Dworkin, to debates over Riggs v. Palmer and Church of the Holy Trinity v. United States, as well as touches on other familiar veins in U.S. legal theory.  Along the way, he treats the reader to edifying discussions of contextual meaning and shared acontextual understanding; of the difference between vagueness and “open texture;” of the theoretical and the empirical aspects of the “no vehicles” debate; of the distinction and interaction between linguistic certainty and legal certainty, and much more. Continue reading "Another Ride on Vehicles in the Park"