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.
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.
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.
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.