120 Yale L.J. 202 (2010).
Treaties are negotiated, usually written down, and often subject to cumbersome domestic ratification processes. Nonetheless, nations often have the right to withdraw unilaterally from them. By contrast, the conventional wisdom is that nations never have the legal right to withdraw unilaterally from the unwritten rules of customary international law (CIL), a proposition that we refer to as the “Mandatory View.” It is not obvious, however, why it should be easier to exit from treaties than from CIL, especially given the significant overlap that exists today between the regulatory coverage of treaties and CIL, as well as the frequent use of treaties as evidence of CIL. In this Article, we consider both the intellectual history and functional desirability of the Mandatory View. We find that a number of international law publicists of the eighteenth and nineteenth centuries thought that CIL rules were sometimes subject to unilateral withdrawal, at least if a nation gave notice about its intent. We also find that the Mandatory View did not come to dominate international law commentary until sometime in the twentieth century, and, even then, there were significant uncertainties about how the Mandatory View would work in practice. Moreover, we note that there are reasons to question the normative underpinnings of the shift to the Mandatory View, in that it may have been part of an effort to bind “uncivilized” states to the international law worked out by a small group of Western powers. After reviewing this history, we draw on theories developed with respect to contract law, corporate law, voting rules, and constitutional design to consider whether it is functionally desirable to restrict opt-out rights to the extent envisioned by the Mandatory View. We conclude that, although there are arguments for restricting opt-out in select areas of CIL, it is difficult to justify the Mandatory View as a general account of how CIL should operate.
120 Yale L.J. 276 (2010).
Courts have long struggled to distinguish legislative rules, which are designed to have binding legal effect and must go through the rulemaking procedure known as notice and comment, from nonlegislative rules, which are not meant to have binding legal effect and are exempted from notice and comment. The distinction has been called “tenuous,” “baffling,” and “enshrouded in considerable smog.”
What is just as baffling is that prominent commentators such as John Manning, William Funk, Donald Elliott, and Jacob Gersen have proposed a simple solution to the problem—and courts have failed to take them up on it. Rather than inquiring into a rule’s nature or effects to decide whether it must undergo notice and comment, these commentators urge, courts should turn the question inside-out and ask whether the rule has undergone notice and comment in order to determine whether it can be made legally binding. This proposal, which I call the “short cut,” would economize on judicial decision costs. Moreover, its proponents say, it would not reduce oversight of the administrative process, because agencies would often opt to submit their rules to notice and comment ex ante in order to ensure that they are treated as legally binding ex post. Lately, proponents of the short cut such as Manning and Gersen have argued that their position is strengthened by the Supreme Court’s 2001 Mead decision, which presumptively disqualifies nonlegislative rules from Chevron deference.This Article explains not only why judges have resisted the short cut, but also why they have been wise to do so. It argues that caution is warranted for three reasons: the short cut inadequately protects the interests of those persons, particularly regulatory beneficiaries, whose interests are affected by deregulatory or permissive agency pronouncements; it stands in tension with the longstanding principle that agencies may choose to announce new policy through either adjudication or rulemaking; and it ignores important differences between public scrutiny at the promulgation stage and heightened judicial scrutiny at the enforcement stage. Nor, I argue, does the Mead decision lend decisive force to the arguments in favor of the short cut, because nonlegislative rules are often accorded substantial deference in practice. These, in short, are the perils of the short cut.
120 Yale L.J. 328 (2010).
This Note argues that rescission—the traditional remedy for innocent misrepresentations on insurance applications—systematically overcompensates insurance companies. In short, rescission allows insurers to refuse benefits to people who make innocent misrepresentations and suffer losses even while retaining the premiums of similarly situated people who never file claims. The principles of contract law do not compel this result, and courts have made insurance law doctrine less coherent in an effort to avoid it. Given the problems that rescission creates in the innocent misrepresentation context, this Note proposes an alternative remedy called “actuarially fair reformation.” Actuarially fair reformation would avoid rescission’s market-distorting inefficiencies by awarding misrepresenting insureds the amount of insurance that their premiums could have financed.
120 Yale L.J. 367 (2010).
120 Yale L.J. 379 (2010).
120 Yale L.J. 397 (2010).