Although customary international law (CIL) has historically been one of the principal forms of international law, it is plagued by debates and uncertainties about its proper sources, its content, its usefulness, and its normative attractiveness. While some of these debates and uncertainties are longstanding, they have intensified in recent years, in part because of the rise of multilateral treaty-making, which allows nations collectively to negotiate and codify broad areas of international law instead of relying on unwritten custom. Moreover, it has become increasingly apparent that CIL is structurally unable to address many of the world’s most pressing problems, such as (to name a few) nuclear proliferation, global warming, and international financial stability. Perhaps most fundamentally, there “is no coherent or agreed upon theory to justify [CIL’s] role or explain its doctrine.” For these and other reasons, CIL is “under attack from all sides.”

In light of the current state of CIL, it is worth thinking creatively about how to improve this body of international law. One difference between the way that many treaties are structured and the way that CIL is structured concerns withdrawal rights. The conventional wisdom among international law scholars is that, once a rule of CIL becomes established, no nation has the legal right to withdraw from the rule. Instead, if a nation wants to change a rule of CIL, either it must convince other nations to enter into a treaty overriding the rule, or it must violate the rule and hope that other nations will acquiesce to the violation. This regime applies even to nations that enter the international system after a CIL rule is formed. In a recent article, Withdrawing from International Custom, we referred to this conventional wisdom as the “Mandatory View” of CIL.

William Eskridge, Jr., and John Ferejohn’s magnum opus on “small ‘c’” constitutionalism and the republic of statutes is an unusually wide-ranging work of legal and political analysis, one that defies comprehensive summary. In this Essay, we bore in on a central element of their thesis: the idea of entrenchment. In A Republic of Statutes, legal entrenchment is used to tether the authors’ normative theory of American constitutionalism to a positive political theory of law. Entrenchment purports to explain how superstatutes arise from successful social movements; further, it explains how these statutes, and the administrative apparatus built to implement the policies encoded in these statutes, become durable features of our American constitutional structure. Insofar as entrenchment does the heavy lifting in A Republic of Statutes, it is imperative that we have a clear picture of what entrenchment means. Such meaning, however, will be elusive.

I. America’s Two Health Care Constitutions

The United States has two health care constitutions, and the old is the enemy of the new. The recently enacted Patient Protection and Affordable Care Act (PPACA) is the latest step in the federal government’s incremental efforts over the past half century to construct and entrench a modern constitution of health security similar to those enjoyed by citizens in most other advanced democracies. At present, this constitution of health security is wobbly and uncertain, embodied in a pastiche of several statutes of various vintages, heavily reliant on private employers as the primary insurers for most Americans and only halfheartedly embraced by the American public. Yet for all of this present uncertainty and complexity, the PPACA stands as a potentially transformative policy achievement that may one day come to be regarded, as Social Security and Medicare are now, as a central component of the “constitution of statutes” that is the subject of William Eskridge and John Ferejohn’s splendid new book, A Republic of Statutes: The New American Constitution.

In A Republic of Statutes, William Eskridge and John Ferejohn argue convincingly that statutes represent basic components of our constitutional structure. Statutes lie at the center of “administrative constitutionalism,” defined as “the process by which legislative and executive officials, America’s primary governmental norm entrepreneurs, advance new fundamental principles and policies.” At one level, this notion is uncontroversial: everyone agrees that the written Constitution authorizes elected officials to enact legislation and grants them extensive discretion in doing so. But Eskridge and Ferejohn go further. They argue that some of these policies become permanent features of our governmental structure and that, in their scope, significance, and level of entrenchment, they serve as elements of the “small ‘c’” constitution that shapes our system of governance. Further still, they suggest that these entrenched policies then determine the way the “Large ‘C’” Constitution (the actual document) is interpreted. “Constitutional law’s evolution is generally—and ought to be—influenced by the norms entrenched in other ways,” they write. “[T]he Supreme Court’s proper Constitutional triumphs have been in cases where the Court enforced Constitutional norms consistent with clear statutory consensus, reached after repeated public deliberations and reflecting an overlapping consensus within the polity.”

Curtis A. Bradley and Mitu Gulati’s Withdrawing from International Custom brings to mind the old joke recounted by Woody Allen in Annie Hall: “Two elderly women are at a Catskill mountain resort, and one of ’em says, ‘Boy, the food at this place is really terrible.’ The other one says, ‘Yeah, I know; and such small portions.’” Similarly, while Bradley and Gulati attack international law’s current prohibition of unilateral withdrawal from custom, they propose an alternative that differs only modestly from it (small portions). At the same time, the doctrinal change they propose would take customary international law in the wrong direction, diminishing its value to states as a mechanism to address common problems (terrible food). If the goal is, as the authors say, to strengthen rather than bury customary international law, the authors have come up with the wrong recipe.

Under the prevailing approach to withdrawal from custom, which the authors denominate the “Mandatory View,” states may exempt themselves from a rule of customary international law by persistently objecting to the rule while it is in the process of forming. Once the rule has come into being, however, states that have not persistently objected are bound until the rule dissolves through a multilateral process. Bradley and Gulati propose to replace the Mandatory View with the “Default View,” which would recognize a limited right of states to withdraw unilaterally from some rules of customary international law.

A statute pointedly described as an “opaque, baroque maze of interlocking cross-references” is unlikely to represent an intelligent response to a fundamental failing in one of the most complicated and divisive areas of law. Yet, the Class Action Fairness Act (CAFA), ostensibly enacted by Congress to remedy purported abuses in class action litigation, created precisely such an uncertain rubric. This Essay considers and attempts to resolve CAFA’s profound and previously unaddressed shortcomings that arise out of its jurisdictional provisions. Specifically, did Congress’s attempt to remedy defects caused by state court adjudication of class actions undermine the federalism and policy interests advanced by such review?

These shortcomings make CAFA perpetually ripe for misinterpretation and seemingly unintended application and were recently highlighted by the United States Court of Appeals for the Eleventh Circuit in Cappuccitti v. DirecTV, Inc. Relying on a similar decision by the Ninth Circuit, the Eleventh Circuit vacated a district court’s dismissal on jurisdictional grounds, finding that the named plaintiff failed to satisfy the $75,000 requirement of 28 U.S.C. § 1332(a). Rather than limiting the scope of its holding to cases originally filed in federal court, the court held this provision germane to all actions removed under CAFA. While the Eleventh Circuit subsequently reconsidered and vacated its prior ruling, the confusion of its initial opinion arose directly out of its interpretation of CAFA’s flawed jurisdictional structure.

The Supreme Court’s forthcoming decision in Snyder v. Phelps will address the clash between two fundamental and longstanding American values: freedom of speech and “the right to be let alone.” Freedom of speech is a cherished and distinguishing characteristic of American democracy, while the right to be left alone has been acclaimed as “the most comprehensive of rights and the right most valued by civilized men.” The facts of Snyder v. Phelps present a direct conflict between these two rights, the reconciliation of which is a complicated and divisive jurisprudential challenge.

The Phelpses’ family-operated Westboro Baptist Church exploited former marine Matthew A. Snyder’s untimely death in Iraq to expound its “religious” belief that “God hates fags” and kills American soldiers to punish the United States for tolerating homosexuality. Its messages, which mixed political and religious viewpoints with personal attacks on the Snyders, produced a jury verdict in the amount of $10.9 million in favor of Matthew’s father for invasion of privacy and intentional infliction of emotional distress. The Fourth Circuit reversed on First Amendment grounds, finding the political speech and personal attacks categorically exempt from tort liability. The Supreme Court granted certiorari.

The Supreme Court’s decision in Snyder v. Phelps will have a profound influence on our social order. In essence, the Court will determine what kind of society we will live in, where the boundaries are for intentionally harmful and malicious speech, and how Americans will attain redress for personal injuries inflicted by speech. The Court’s decision will send a message to both perpetrators and victims of extreme and injurious hate speech, bullying, harassment, and other speech-based tortious behavior, which will either encourage or discourage intentionally harmful speech. In short, the Court’s decision in Snyder v. Phelps is of monumental social importance.

Professors Curtis Bradley and Mitu Gulati have written a rich and interesting paper with a bold conclusion supported by historical and normative arguments. I find myself unpersuaded by either set of arguments. Most of my comments concern their reading of the historical sources, which they use to show both that the Default View was indeed the traditional doctrine of customary international law (CIL) and that the Mandatory View carries a disagreeable colonialist legacy. I criticize the former argument in Part I and the latter in Part II. But I also reject their claim that the Mandatory View makes CIL too “sticky” and hard to change. Taking the law of war as the principal example, I suggest in Part III that stickiness may be a virtue, because the alternative to supposedly outmoded customary law is likely to be no law rather than better law.

To lawyers, corruption is mainly a problem of law enforcement. Bribes and other types of corrupt dealings are hard to observe and to prosecute if both sides gain from the transaction. Even clear losers may risk retaliation if they report a transaction. To lawyer-economists, bribery is just a special case of the economic analysis of criminal behavior more generally.

This focus on law enforcement begs some interesting questions. Some contest the very concept of corruption, requiring an analysis of deep questions defining the relationship between state and society. I address these issues in Parts I and II by confronting the seemingly disparate views of free-market libertarians and of ethnographers who study corruption as an aspect of the relations between state and society. Although their views are fundamentally different in many respects, they are both skeptical of the modern state and frequently see “corruption” as a superior alternative to abiding by formal law. In Part III, I explore how free-marketeers and cultural ethnographers confront what is called “grand corruption”—involving political leaders and multinational firms. Here, we see a marked reversal. Corporate interests, which in other circumstances emphasize the value of the free market, here characteristically invoke local cultural practices as an excuse for making payoffs. In contrast, it is the scholars of local cultural practices who invoke the predominance of economic incentives—that is, the greed and the profit motive of multinational firms—to condemn grand corruption. After confronting these curious convergences and conceptual reversals, Part IV develops my own “democratic legitimacy” approach. It stresses the way pervasive corruption undermines the competence, fairness, and democratic legitimacy of the modern state. Corruption substitutes the criterion of willingness-to-pay for criteria based on desert, need, efficiency, and other values. This approach leads to a suggested reform agenda consistent with the goal of strengthening state capacity and accountability.

Words have a way of coming back to haunt you, especially those you bother to print. Just ask Elena Kagan. In a 1995 book review, she famously skewered the Senate Judiciary Committee hearings for Supreme Court nominees as “a vapid and hollow charade, in which repetition of platitudes have replaced discussion of viewpoints and personal anecdotes have supplanted legal analysis.” Those are strong words, the kind that young professors truck in when the favor of a tenure committee is foremost in their minds and the courage of their convictions comes cheap.

Things change. Fifteen years after defending “the essential rightfulness—the legitimacy and the desirability—of exploring a Supreme Court nominee’s set of constitutional views and commitments,” Kagan was the nominee and found herself on the receiving end of her own taunts. Would she challenge the central conceits of originalism? Thumb her nose at Justice Scalia? Provide a progressive view?

She would not. And honestly, who can blame her, especially after President Obama’s experience, just a year before? He had challenged conventional wisdom when he called empathy “an essential ingredient for arriving a[t] just decisions and outcomes” and thus the preeminent quality he would look for in his Supreme Court nominees. It was not the first time the President had used the word “empathy” to describe his views on constitutional interpretation and the complicated work of a judge. It may, however, have been the last.

In the forty years since the landmark decision in Tinker v. Des Moines Independent Community School District, the Supreme Court has narrowed the expansive vision of student-protected speech espoused in that case. Tinker held that school officials cannot restrict a student’s expression of opinion unless it will contribute to a disturbance in the educational environment. Since then, Tinker has governed situations where a school district implements content- or viewpoint-based regulations of student expression. For example, Tinker has been applied where a school punished students who wore “scab” buttons to protest replacement teachers during a school strike and where school administrators implemented a policy against inappropriate public displays of affection in part because “such conduct . . . sends the wrong message.”

There remains a long-standing fault line under the Tinker doctrine that the Court has acknowledged but has yet to repair: is Tinker’s standard limited to only content- and viewpoint-based regulations of student speech, or does it also apply to content-neutral restrictions? Content-neutral regulations are speech limitations “justified without reference to the content of the regulated speech,” such as a school uniform policy enacted for purposes unrelated to restricting student expression through clothing or a leaflet policy designed to “decrease distractions” at school by controlling when students may distribute materials.

David Souter stepped down from the Supreme Court one year ago, making way for the carefully choreographed nomination and confirmation of his successor, Justice Sonia Sotomayor. This summer will feature a similar transition dance as Elena Kagan, the nominee for Justice Stevens’s now-vacant seat, appears before the Senate Judiciary Committee for her confirmation hearings. While the preponderance of commentary on Supreme Court confirmation hearings laments the tightly scripted, unenlightening exchanges with inscrutable nominees, Justice Souter’s appearance before the Committee is an underappreciated success of the confirmation process. This Essay reflects on the Souter hearings as a transparent account of a nominee’s philosophy of judging, an account that remained predictive of Souter’s views nearly two decades later, in his final days as a Justice.

Citizens United has wrought widespread changes in the election law landscape. Yet, a lesser-known consequence of this watershed case might have a significant impact in the workplace: it may permit employers to hold political captive audience workplace meetings with their employees. Under Citizens United’s robust conception of corporate political speech, employers may now be able to compel their employees to listen to their political views at such meetings on pain of termination.

To eliminate this danger while remaining consistent with the First Amendment framework for election law post-Citizens United, this Essay urges Congress to consider language similar to that enacted by the Oregon Worker Freedom Act (S.B. 519), which became effective January 1, 2010. S.B. 519 prohibits termination of employees for refusing to attend mandatory political, labor, or religious meetings held by their employers. Enacting a federal law like the Oregon bill, which would protect employees from being terminated, disciplined, or otherwise disadvantaged for choosing not to be subjected to indoctrination meetings, would effectively address this problem and would constitute permissible employment standards legislation.

Climate change has become the hottest environmental debate in decades. It could also go down as the dirtiest—and not just politically. As legislators, regulators, pundits, and stakeholders debate the question of whether or not to regulate greenhouse gas emissions, the regulatory uncertainty that they have created is leading to dirtier air quality in this country, which in turn is harming our health. According to calculations based on Bush-era EPA data, the climate debate is likely already responsible for hundreds (if not thousands) of premature deaths and billions of dollars in additional health care costs—all of which are unrelated to rising temperatures.

The regulatory uncertainty surrounding the climate debate, coupled with a recent downturn in emissions markets, is slowing the installation of pollution controls on coal-fired power plants, which are some of the largest emitters in this country. This is leading to dirtier air in our cities and towns and particularly in some of this nation’s most protected areas like the Great Smoky Mountains, Shenandoah, and Everglades National Parks—just to name a few. Ironically, the uncertainty has also led electric utilities and environmental groups to flip positions on pollution controls. Prominent environmental groups like the Sierra Club are now opposing efforts by utilities to install environmental controls on their power plants, the same controls that these groups have fought voraciously to attain for over thirty years and that many utilities have avoided. These environmentalists are choosing to sacrifice known short-term health and environmental benefits for their long-term climate policy goals. It is hard to believe, but it is true. Congress must quickly put a stop to this nonsense.