Basic due process requirements ordinarily permit a defendant the opportunity to contest a prior default judgment for lack of personal jurisdiction. In the July 2010 decision in Rubin v. Eurofinance SA, an English appeals court held that these safeguards did not apply to judgments entered "for the purposes of the collective enforcement regime of [a] bankruptcy proceeding[]."  The court's holding, which amounts to the pronouncement of a "bankruptcy" exception to due process, lacks a principled basis and was unwarranted under the circumstances. 

Response to:  David E. Pozen, Judicial Elections as Popular Constitutionalism, 110 Colum. L. Rev. 2047 (2010).

Four months ago, Iowa voters tossed out three justices who backed same-sex marriage.  Academic and media commentary of the elections largely focused on the related questions of whether judicial elections fundamentally threaten judicial independence and whether constitutional change can be pursued through something less draconian than the ouster of judges.  The possibility that judicial elections should be embraced as a vehicle to facilitate constitutional dialogues between voters, elected officials, and judges got no meaningful play in discussions of the Iowa elections.  Likewise, there was next to no discussion of whether judicial elections facilitate "popular constitutionalism"—by making fundamental constitutional questions more tangible, more immediate.  The Iowa elections certainly call attention to the need to think about the mechanisms by which voters can constructively engage in popular constitutionalism.  Likewise, the advent of the Tea Party (which regularly invoked the Federal Constitution in its call to rein in governmental power) highlights the potential power of social movements in shaping constitutional discourse and, in so doing, highlights the need to—as Larry Kramer put it—consider "what kind of institutions we can construct to make popular constitutionalism work."  For this and many other reasons, David Pozen's "Judicial Elections as Popular Constitutionalism" is timely and important. 

As the residential foreclosure crisis has developed, it has revealed a succession of systemic failures in the public and private sectors.  Many scholars and policymakers have criticized the lack of transparency in the residential mortgage market and argued that the opacity of the system, along with the increasing complexity of transactions, contributed to the present financial crisis.  The recent announcement that major lenders were suspending pending foreclosure actions in the wake of questions about their documentation practices has focused attention on another opaque system that has failed to keep pace with the increasing complexity of the modern real estate industry:  the American land title system.  When the antiquated local title recording system failed to meet the needs of national lenders, they created a separate, private, limited access system to record and track residential mortgage assignments.  The failures of that private, parallel system are playing an important role in millions of foreclosure cases.  This Essay argues that the current foreclosure crisis should serve as a regrettable wake-up call for a long-overdue modernization of the American land title recording system.

Prosecutors wield tremendous power in deciding whom to charge.  Scholars focus on the most visible injustices, as when police arrest, and prosecutors pursue, capital defendants who turn out to be factually innocent of murder.  But as Josh Bowers rightly notes, the sliver of visible, serious felonies is dwarfed by the mountain of minor, low-visibility misdemeanors and violations.  Prosecutors are reasonably good at classifying crimes based on legal guilt and on administrative criteria, such as how much time and effort they will have to invest.  In Bowers's evocative terms, they are good at thinking inside the box, at putting cases into legal pigeonholes.  They are much worse, however, at thinking outside the box, at weighing all the particulars and exercising equitable discretion.  Our consistent faith in prosecutors' expertise, Bowers argues, is not only misguided, but backwards; we should value outsiders' fresh perspectives over insiders' jaded expertise.  In Part I of this response, I largely praise Bowers's diagnoses of the illness.  It is far easier to diagnose a malady than to treat it, however.  Thus, Part II then presses Bowers on possible solutions and offers a few of my own.  

In the United States, Congress has traditionally relied, in part, upon citizen participation to control industrial activity and its effects on public welfare.  It has also required industry to disclose certain information to the public in order to enable this participation.  But a recent revolution in energy development—inspired by a new technique to extract natural gas from shale—called slickwater hydraulic fracturing (fracing)—does not fall squarely within traditional venues for public disclosure and participation.  In September 2010, the Environmental Protection Agency (EPA) took one step toward the "publicization" of fracing when it sent a letter to nine natural gas companies, requiring that they disclose to the agency the chemicals used in fracing in order to support a comprehensive EPA study of the potential drinking water quality and public health impacts of fracing.  Although this administrative action appears to open a door to public access to information veiled by trade secrets, it is not currently clear that natural gas companies will promptly disclose the requested information—as shown by Halliburton's refusal to disclose information in response to the letter and a subsequent subpoena issued by EPA—or that the information will be publicly available.  Unless Congress or state legislatures partially remove trade secret protections from fracing fluids, communities experiencing the brunt of the energy boom may have inadequate tools to evaluate and address the potential impacts of this development. 
 

Response to:  Trevor W. Morrison, Stare Decisis in the Office of Legal Counsel, 110 Colum. L. Rev. 1448 (2010).

In Stare Decisis in the Office of Legal Counsel, Trevor Morrison provides valuable insights into the work of the Office of Legal Counsel (OLC) that scholars examining executive power or practice should thoroughly consider.  In this latest effort, Professor Morrison empirically demonstrates that OLC legal opinions serve as a form of binding precedent for that office, and posits that there are many good reasons for giving those opinions stare decisis effect.  This response addresses only the normative theoretical inquiry and makes one essential point:  Professor Morrison's analysis relies heavily upon institutional considerations and potentially problematic OLC perceptions of its role.  He does not consider, and therefore potentially undervalues, the proper effect of an OLC attorney's individual ethical and legal obligations.  Potentially problematic OLC practices include its identification of the opinion-requesting agency—the President and/or the executive branch—as the client.  These factors may generate consistent, executive-friendly error in OLC legal opinions.  Such error diminishes the interpretive value of OLC precedent, and thereby the propriety of applying judicial stare decisis principles to OLC legal opinions.