Paul B. Stephan

Defenses, Presumptions, and Burden of Proof in the Criminal Law

* This article is an elaboration of views first stated in Low & Jeffries, DICTA: Constitutionalizing the Criminal Law? Va. L. Weekly, Mar. 25, 1977, at 1. The authors would like to thank Thomas F. Bergin, Richard J. Bonnie, Ronald A. Cass, Thomas H. Jackson, Jerry L. Mashaw, Harvey S. Perlman, Stephen A. Saltzburg, and Peter Westen for their criticisms and comments. Thanks are also due to Jonathan Koch, Barbara Schilberg, and Douglas Sullivan for research assistance and to Andrew Brumby for preparation of the appendix. Most especially, the authors acknowledge their continuing intellectual indebtedness to Peter W. Low. Without his guidance and encouragement, this piece would not have been done. t Assistant Professor of Law, the University of Virginia.

Toward a positive theory of privatization--lessons from soviet-type economies

J.D. 1977, the University of Virginia School of Law.

Private Litigation as a Foreign Relations Problem

Abstract Many accounts of privatization in democratic, market-oriented countries stress the role played by mechanisms of political accountability. These processes, the story goes, induce political decisionmakers intermittently to take public-regarding steps, and in many cases the transfer of property and functions from the state to the private sector benefits the general welfare rather than specific interest groups [Cass (1988); Donahue (1989); Vickers and Yarrow, (1988)]. But then what explains privatization in Soviet-type economies? Does the surrender of state control over the economy in those countries stem primarily from a conversion to a new faith about how to attain a good and just society? If so, what brought about this conversion? In particular, were elites in Soviet-type societies more public-regarding than their counterparts in the West, even though they did not face electoral discipline? If not, then to what extent does the privatization process in these countries reflect rent seeking by discrete groups, and how does such rent seeking affect the privatization process? What aspects of this process are distinctive to Soviet-type economies? This paper addresses these questions.

Comparative International Law: Framing the Field

In RJR Nabisco v. European Community, the Court added an exclamation point to a long term trend in its jurisprudence. It believes, this trend indicates, that private civil suits pose specific foreign relations issues, at least when the targets are foreign transactions and actors, to which the Court will respond by erecting barriers. To this general point the case adds an unsurprising, but still important codicil: These problems don’t go away when foreign states take advantage of the U.S. civil litigation system by acting as plaintiffs.

The Political Economy of Judicial Production of International Law

At first blush, “comparative international law” might sound like an oxymoron. In principle, international law—at least when it arises from multilateral treaties or general custom—applies equally to all parties or states. As a result, international lawyers often resist emphasizing local, national, or regional approaches due to the field’s aspirations to universality and uniformity. Comparativists, meanwhile, frequently overlook the potential to apply comparative law insights to international law on the basis that “rules which are avowedly universal in character do not lend themselves to comparison.”

United States v. Bond and Information-Forcing Defaults: The Work that Presumptions Do

This paper treats the design of judicial mechanisms (international courts, domestic courts, arbitral tribunals and the like) as variables that are intended to and do affect the output of these courts, particularly the scale and scope of claims about international law. It looks at the selection process for tribunal members, the terms of reference given the tribunal, and the post-adjudication retention constraints on members, such as length of term and non-reappointment. To test this claim, the paper focuses on six case histories of instances where judicial mechanisms have diverged about the content of international law, in some instances within a single overarching case. The case histories both illustrate and are consistent with four conjectures about the effect of variation in design on the content of the product of international adjudication: national courts will demonstrate great variation; the responsiveness of international tribunals to state interests will reflect these design features; regional tribunals will reflect particular regional interests to a greater extent than will broad-based multilateral tribunals; and special purpose tribunals will tend to expand their jurisdiction, which is the say the scope of the claims they make about international law, to a greater extent than will broad-based multilateral tribunals.

PROCESS VALUES, INTERNATIONAL LAW, AND JUSTICE

This article, written for a symposium on Bond v. United States, connects the law and economics of contract interpretation to the Supreme Court’s modern practice of creating statutory interpretive presumptions. The paper compares information-forcing defaults, both majoritarian and penal, to contract rules that allow parties to design mechanisms to deal with future contingencies about which no party has special knowledge. Delegation rules allow parties to specify a set of contingencies that, upon realization, entitle a selected third party to supplement the contract to incorporate post-contractual information. From a welfare perspective, information-forcing defaults and delegations are complements, each desirable under specified conditions. But, as to any particular issue, these strategies are contradictory. Choosing a delegate to resolve downstream problems reduces a party’s incentive to disclose relevant information at the time of contracting. The challenge thus becomes determining the conditions, both in theory and in practice, where each approach is likely to optimize the value of a contract. The paper then looks at several informal models of how Congress and the federal judiciary operate, and in particular at how they interact dynamically with respect to statutory interpretation. It then identifies the circumstances under each model that would support a conclusion that Court’s current trend may contribute to the social good. It argues that none of the areas where presumptions have emerged satisfy the requirements for a delegation of downstream lawmaking to the courts based on unknown information. In contrast, statutory presumptions against encroachments into areas of core state competence (Bond), extraterritorial effect of regulation (Morrison and Kiobel), violations of international law (Charming Betsy), and constitutional confrontations (Catholic Bishop) reflect a plausible majoritarian default of avoiding conflicts with parallel legal regimes. The presumption against implied causes of action, by contrast, reflects a penal default based on the need to promote transparency and accountability in lawmaking.

Redistributive Litigation - Judicial Innovation, PrivateExpectations and the Shadow of International Law

A focus on the lawmaking process, I submit, permits us to explore a particular dimension of justice, namely the relationship between law and liberty. Laws that reflect the arbitrary whims of the lawmaker are presumptively unjust, because they constrain liberty for no good reason. A strategy for making arbitrary laws less likely involves recognizing checks on the lawmakers powers and grounding those checks in processes that allow the governed to express their disapproval. The system of checks and balances employed in the U.S. Constitution embodies this strategy, although reasonable people can debate its efficacy. As A.O. Hirschman observed, regimes that permit free movement of persons and property similarly restrict the force of arbitrary rules by allowing exit from unwanted restrictions. I want to inquire into the role of checks in international lawmaking. At first blush, it might appear that the fundamental principle of state consent provides all the checking that international lawmaking needs. This principle maintains that a state (and by extension, its subjects) can be bound by a rule of international law only if that state manifests its consent to the rule. As long as states have a real choice, itself subject to internal checks on official decisionmaking, the adoption of the rule should meet basic criteria of procedural justice. Indeed, the correlate of this principle—that each state has a veto over the adoption of international law, at least as applied to itself and its subjects—suggests that international lawmaking poses less of a threat to liberty than do conventional municipal lawmaking processes based on majority rule. One might think that, as a result of this principle, no rule will attain the status of international law unless its adoption makes some states better off and no state worse off. This first impression, however, is wrong. First, international lawyers argue for the existence of jus cogens norms that apply regardless of state consent. Second, the concept of state consent is artful, and opportunistic decisionmakers have some freedom to construe consent in ways that circumvent conventional checking processes. Third, political and economic coercion can reduce state consent to a meaningless formality. I discuss each of these points in turn. Once state consent ceases to constrain international lawmaking, the question role of alternative checks to protect liberty looms. Under what circumstances does the international lawmaking process as currently constituted present a threat of arbitrary force? What kinds of resistance to the results of international lawmaking can process values justify? I address these questions in three steps. First, I explore whether international law does carry a threat of coercion. If not, concerns about arbitrary restrictions of liberty are misplaced. Second, I discuss the problems arising from delegations of lawmaking authority to international institutions, with specific reference to the Rome Statute and the International Criminal Court. Third, I discuss the process-value issues associated with judicial lawmaking. None of these concerns justifies blanket opposition to international lawmaking. Rather, those interested in making and enforcing international rules need to grapple with these issues and provide another layer of justification for their efforts. I am indebted to Ken Abbott, Jean Cohen, Larry Helfer, Robert Hockett, Sean Murphy, Phil Nichols, Ed Swaine, Joel Trachtman, the other contributors to this volume, and participants in a workshop at the University of Virginia School of Law for comments and criticism. Shortcomings are mine alone.

The limits of Leviathan : contract theory and the enforcement of international law

In this paper, forthcoming in the Virginia Law Review, I explore the role of litigation as a policy-making and rule-generating process in the context of a democratic republic. In democracies, legislatures redistribute wealth, rights, and privileges; debate rages over the direction of this redistribution and its desirability, but not about its existence. Given the openness of the legislature to redistribution, should a society also dedicate its judicial system to revising existing legal arrangements? Do particular kinds of redistributive litigation raise distinct concerns that justify doctrinal innovation and extension? The emergence of large, government-sponsored lawsuits as a means of imposing sanctions on controversial, but heretofore authorized practices, such as the manufacture and sale of cigarettes and firearms, indicates the significance of these issues, as do recent developments in international arbitration. I argue that the creation of some obstacles to such litigation is justified, but only to the extent that the institutional features of such litigation expose outsiders to exceptional risks.