A Default-Logic Paradigm for Legal Reasoning and Factfinding

Unlike research in linguistics and artificial intelligence, legal research has not used advances in logical theory very effectively. This article uses default logic to develop a paradigm for analyzing all aspects of legal reasoning, including factfinding. The article provides a formal model that integrates legal rules and policies with the evaluation of both expert and non-expert evidence – whether the reasoning occurs in courts or administrative agencies, and whether in domestic, foreign, or international legal systems. This paradigm can standardize the representation of legal reasoning, guide empirical research into the dynamics of such reasoning, and put the representations and research results to immediate use through artificial intelligence software. This new model therefore has the potential to transform legal practice and legal education, as well as legal theory

The Limited Diagnosticity of Criminal Trials

Few political institutions play as palpable, ubiquitous, and solemn a role in the U.S. public life as the criminal justice system. The task of determining the defendant\u27s criminal liability with a high degree of certitude is performed through the ritualized and highly proceduralized adjudicative process, with the trial at its core. The United States Supreme Court has portrayed the criminal trial as a decisive and portentous and paramount event. Trials are considered the central institution of law as we know it, the crown jewel of the legal system. Amidst its multiple purposes, an essential objective of the criminal trial is to determine facts: which human events constitute crimes and who perpetrated them. Specifically, the trial is designed to serve the diagnostic function of distinguishing between prosecutions of guilty and innocent people, or at least between compelling prosecutions and those that do not meet the requisite certitude. The prevailing sentiment within the American polity and legal profession is that the trial is indeed acutely diagnostic. Naturally, the potential for accurate criminal verdicts depends on the ability of the factfinders-typically juries-to ascertain the facts accurately. The Supreme Court routinely lauds the process\u27s factfinding capabilities

A New Generation of International Adjudication

This Article challenges the conventional view of contemporary international adjudication. It identifies a new generation of international tribunals, which has been largely ignored by commentators, and argues that these tribunals offer a highly successful, alternative model to traditional public-international-law adjudicatory bodies. The proliferation of international tribunals is widely regarded as one of the most significant developments in international law over the past century. The subject has given rise to an extensive and robust body of academic commentary. Although commentators reach widely divergent conclusions about many aspects of international law and adjudication, they all agree that international tribunals differ fundamentally from national courts. In particular, according to the commentary, international tribunals such as the International Court of Justice lack the power to render enforceable decisions or to exercise compulsory jurisdiction. This Article argues that commentators have proceeded from a flawed and incomplete understanding of contemporary international adjudication. Virtually all commentary on the subject ignores the development of a second generation of international tribunals, best represented by international commercial and investment tribunals, World Trade Organization panels, and claims-settlement mechanisms. Contrary to the conventional wisdom about international adjudication, this new generation of international tribunals has the power to exercise what is effectively compulsory jurisdiction and to render enforceable decisions that can often be coercively executed against states and their commercial assets. These second-generation tribunals have been the most frequently used and, in many respects, the most successful form of international adjudication in recent decades. The caseloads of these tribunals have grown rapidly over the past forty years and now substantially exceed those of traditional public-international-law tribunals. Moreover, an analysis of state treatymaking practice over recent decades shows that states have virtually never concluded treaties accepting the jurisdiction of traditional first-generation tribunals—concluding less than one treaty per year—whereas they have frequently accepted the jurisdiction of second-generation tribunals capable of rendering enforceable decisions—accepting some fifty treaties per year. More fundamentally, second-generation tribunals have played an essential role in facilitating international trade, finance, and investment; have contributed to the development of important fields of international law; and have provided leading contemporary examples of international law working in practice. Although largely ignored by the commentary, the success and frequent use of second-generation tribunals have important implications for conventional analysis of international adjudication. The success of these tribunals flatly contradicts the claims, advanced by a number of academic commentators, that international adjudication is unimportant in contemporary international affairs and that states do not use international tribunals—particularly tribunals that would be effective. In reality, second-generation tribunals have been frequently and successfully used in vitally important fields, in part because they issue effective and enforceable decisions. At the same time, the success of second-generation tribunals also contradicts prescriptions, offered by a number of commentators, that future international tribunals be modeled on “independent” first-generation tribunals or, alternatively, on entirely “dependent” adjudicative mechanisms. Successful second-generation tribunals exhibit a blend of structural characteristics that defy blanket prescriptions for either “independence” or “dependence” and that counsel for more tailored, nuanced institutional designs

Allocating Deference in Shared Administrative Space

How do courts allocate deference when multiple agencies propose conflicting interpretations? While the Supreme Court has a clearly established Chevron-Mead paradigm for a single agency engaging in statutory interpretation, it has yet to articulate a method for applying deference in “shared administrative spaces,” legal jurisdictions wherein statutes task multiple agencies with implementing their provisions. The Court’s silence in this arena has allowed lower courts and scholars to develop competing and conflicting approaches to applying deference in shared administrative spaces. This Article challenges the previously proposed rules for shared administrative spaces and proposes a new one. Courts should reframe Chevron “step zero” to determine which agency’s interpretive procedure best exemplifies congressional intent, public accountability, and agency expertise. Given the procedure-dependent strength of these justifications, courts should give preference to informal rulemaking over informal adjudications for the purposes of deference in shared administrative spaces. By adopting this approach, the Court would resolve interagency disputes in a manner that reflects established Chevron-Mead principles

Congressional Enforcement of International Human Rights

(Excerpt) On October 2, 2018, Jamal Khashoggi, a Saudi journalist based in the United States, walked into the Saudi consulate in Istanbul, Turkey, where he was brutally murdered and dismembered by Saudi government agents. It was a brazen violation of the most fundamental, internationally recognized human rights, carried out by one close US ally in the territory of another close ally. The US intelligence community quickly determined that the Saudi government and its Crown Prince, Mohammed Bin Salman, were responsible for the killing. Members of Congress briefed by the intelligence community accepted that conclusion, and on October 10, 2018, a bipartisan group of Senators wrote to President Trump demanding that he make a determination of individuals to be sanctioned for the murder of Khashoggi, in accordance with the Global Magnitsky Act

Agency Delays: How a Principal-Agent Approach Can Inform Judicial and Executive Branch Review of Agency Foot-Dragging

Article published in the Geo. Washington Law Review