Vol. 5, No. 1: Mar 05, 2010

Associate Dean for Faculty and Research Professor of Law and Judge Frederick B. Lacey Scholar, Rutgers Law School - Newark

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"Dis-Jointed? Several Approaches to Divisibility after Burlington Northern"

Vermont Journal of Evironmental Law, Vol. 11
Rutgers School of Law-Newark Research Papers No. 062

STEVE C. GOLD, Rutgers School of Law-Newark

In Burlington Northern and Santa Fe Railway Co. v. United States, the Supreme Court held that a very thin trial court record provided a reasonable basis for apportionment of defendants' CERCLA liability under the prevailing legal standard borrowed from Section 433A of the Second Restatement of Torts. Predictions of the decision's effect on the availability of joint and several liability under CERCLA vary, predictably, in accordance with the the litigation interest of the predictor. In this article I argue that that even after Burlington Northern, federal courts are bound to assess the scope of CERCLA liability not only by applying traditional common law standards but by doing so with reference to the structure and purposes of CERCLA's liability scheme. Therefore, Burlington Northern's divisibility holding should have little effect in many typical CERCLA fact patterns. Moreover, even if Burlington Northern is interpreted to relax the proof requirements for defendants seeking apportionment, joint and several liability should still be available in many CERCLA cases under several legal theories. This article describes those theories and analyzes their relative merits.

"Review Essay: Golden Rule Ethics and the Death of the Criminal Law's Special Part"

Criminal Justice Ethics, Forthcoming
CRIME AND CULPABILITY: A THEORY OF CRIMINAL LAW, Larry Alexander, Kimberly Kessler Ferzan, Stephen Morse, eds., Cambridge University Press, 358 pp., 2009
Rutgers School of Law-Newark Research Papers No. 063

STUART P. GREEN, Rutgers Law School-Newark

This brief review of Crime and Culpability: A Theory of Criminal Law, by Larry Alexander and Kimberly Kessler Ferzan, with Stephen Morse, focuses on the authors' proposal that the Special Part of the criminal law, the part that identifies and defines specific offenses, be radically stripped down in a manner that is reminiscent of the Golden Rule of Ethics, which, they say, offers a "clear" and "concise" guide to living ethically. Rather than a long list of specific prohibited forms of conduct ("don't murder," "don't rape," "don't commit theft," and the like), they argue, the criminal law should rely on a single "general rule," to the effect that "[i]t is criminal for an actor to take an unjustified risk of causing harm to a legally protected interest or to take an unjustified risk that his conduct constitutes prohibited behavior."

Contrary to the authors' contention, the proper formulation, meaning, and function of Golden Rule of Ethics are anything but "clear." There are substantial controversies about both the Rule's substance (its proper formulation, its meaning, and whether it leads to the right result), and its procedure (e.g. about whether the rule is meant to be relied on by ordinary people on a case-by-case basis in their daily lives; applied only when there exists no more specific rule on point, or where specific rules conflict; or used, primarily by theorists, as a general justifying principle that explains or justifies more specific ethical rules). Relying on a single, general rule of conduct in the criminal law sphere would create similar interpretive and practical uncertainties and difficulties. Rather than doing away with centuries of common law and legislative developments, and essentially starting over, we should instead endeavor to refine the criminal codes we already have so that they are more carefully formulated and more respectful of the harm principle.

"Justice & Deterrence in International Law: Improper Limitations on Responses to Unlawful Aggression"

U of Penn Law School, Public Law Research Paper No. 10-03
Rutgers School of Law-Newark Research Papers No. 64

PAUL H. ROBINSON, University of Pennsylvania Law School
ADIL AHMAD HAQUE, Rutgers, The State University of New Jersey - School of Law-Newark

Current international law imposes limitations on the use of force to defend against unlawful aggression that improperly advantage unlawful aggressors and disadvantage their victims. The Article gives examples of such rules, governing a variety of situations, showing how clearly unjust they can be. No domestic criminal law system would tolerate their use.

There are good practical reasons why international law should care that its rules are perceived as unjust. Given the lack of an effective international law enforcement mechanism, compliance depends to a large degree upon the moral authority with which international law speaks. Compliance is less likely when its rules are perceived as obviously unjust. This common sense perspective is supported by social science research showing the importance of law's moral credibility in gaining assistance and compliance, in reducing resistance and subversion, and in helping to shape shared norms. The current practice of victim states' ignoring the legal limitations, with studied indifference to such "violations" by the international community, only legitimizes and habituates law-breaking, further undermining international law's moral credibility.

Interpretations of international law can be constructed that would narrow the gap between the legal rules and moral intuitions regarding the use of defensive force. Such revisionist interpretations may be a useful temporary measure, but are not a solution, because the gap between law and justice can be narrowed but not closed by reinterpretation alone. Ultimately, reform is required of international law's foundational texts, in particular Article 51 of the U.N. Charter.

International law limitations on responses to aggression are also improper for reasons beyond their conflict with the principles of justice instantiated in domestic criminal law. International law and domestic criminal law are importantly different. Most fundamentally, international law lacks an effective law enforcement system. In order to effectively control unlawful aggression, international law needs to have fewer limitations on responses to aggression, not more. A series of examples of such improper limitations are given. They have the unfortunate effect of promoting aggression and instability by undermining effective deterrence. Again, there exist possible reinterpretations of international law that could avoid some of the improper limitations but, ultimately, a reform of international law's foundational texts is required.

Opportunities for reform of international law are rare, but luckily the Assembly of State Parties to the International Criminal Court is currently developing an amendment to the Rome Statute that identifies the crimes over which the Court has jurisdiction. Tragically, rather than taking this opportunity to confront international law's existing problems, the current Draft Amendment compounds those problems by imposing individual criminal liability on leaders of victim states who authorize defensive force against unlawful aggression in violation flawed current law.

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