Law as Asymmetric Information: Theory, Application, and Results in the Context of Foreign Direct Investment in Real Estate

In his seminal 1970 article on lemon markets, George Akerlof posited the possibility of market failure in the presence of asymmetric information regarding a good’s value. In the intervening four decades, the importance of accurate valuation information has grown as transnational trade has boomed. The aim of the instant article is to assess the potential impact on transnational trade of asymmetric information regarding the legal attributes of a given good. Inaccurate or asymmetric information regarding relevant legal attributes may give rise to the same problem of market failure that Akerlof initially posited. If buyers are unsure of the ownership of a good, its conveyability, or their rights and obligations in a given transaction, they might decline to transact at all. If these legal uncertainties are pervasive, transactions in that market might cease to take place altogether. Nonetheless, consistent with the remainder of Akerlof’s article, the presence of certain counteracting institutions may lessen the impact of asymmetric information, thus forestalling market failure. These counteracting institutions in the context of asymmetric information regarding legal attributes would include a fully and fairly functioning judiciary, publicized and lucid laws and regulations, and other such mechanisms that would make clear the rights and obligations of all parties to a transaction. Thus, this article addresses the possibility of law as asymmetric information in the general sense and the specific, by assessing whether asymmetries regarding property law might contribute to market failure in the context of foreign direct investment in real estate. Regardless of whether that market is a lemons market, the conclusions of this article support systemic reform in the property regimes of developing and transition economies, to ensure that shortcomings in the institutional and legal frameworks of these states do not hinder fuller economic development

Democracy Promotion in the Obama Administration: An Opportunity to Match Action to Rhetoric

This article addresses whether and to what extent the Obama administration should continue the Bush administration policies relating to democracy promotion. The focus of the article is on the ADVANCE Act of 2007, a legislative enactment that institutionalized democracy promotion in the State Department. After explicating the key provisions of this Act, as well as their implementation status, the article addresses key critiques leveled at democracy promotion, as well as areas where the Obama administration can expand on what has been accomplished thus far in this field. In the end, democracy promotion should continue to be an integral component of the United States\u27 foreign policy, and the Obama administration is uniquely placed to ensure the efficacy of such efforts in the near-term. Whether the administration can add such a broadly conceived endeavor to its current plate is another, unaddressed, issue

Harvard and Yale Ascendant: The Legal Education of the Justices from Holmes to Kagan

With the nomination of Elena Kagan to be a justice of the United States Supreme Court, it is quite possible that eight of the nine justices will have graduated from only two law schools—Harvard and Yale. This article frames this development in the historical context of the legal education of those justices confirmed between 1902 and 2010. What this historical review makes clear is that the Ivy League dominance of the Supreme Court is a relatively recent occurrence whose beginnings can be traced to Antonin Scalia’s 1986 confirmation. Prior to that time, although Harvard and Yale were consistently represented among the justices, they did not constitute a majority of sitting members. In addition to this strictly historical assessment of the justices’ education, this article also attempts to ascertain why the Harvard-Yale trend has arisen, and whether this trend may have deleterious effects on the future of constitutional law. In concluding, it is the recommendation of this article that when the next vacancy arises, the President should look outside the confines of Harvard and Yale for a qualified nominee

The ADVANCE Democracy Act and the Future of United States Democracy Promotion Efforts

This article addresses whether and to what extent the Obama administration should continue the Bush administration policies relating to democracy promotion. The focus of the article is on the ADVANCE Act of 2007, a legislative enactment that institutionalized democracy promotion in the State Department. After explicating the key provisions of this Act, as well as their implementation status, the article addresses key critiques leveled at democracy promotion, as well as areas where the Obama administration can expand on what has been accomplished thus far in this field. In the end, democracy promotion should continue to be an integral component of the United States\u27\u27 foreign policy, and the Obama administration is uniquely placed to ensure the efficacy of such efforters in the near-term. Whether the administration can add such a broadly conceived endeavor to its current plate is another, unaddressed, issue

The Removability of Non-Citizen Parents and the Best Interests of Citizen Children: How to Balance Competing Imperatives in the Context of Removal Proceedings?

The massive influx of illegal immigrants over the preceding decades has combined with the United States’ jus soli citizenship regime to produce a growing class of removable aliens: non-citizen parents of United States citizen children. The removability of parents obviously places the citizen children in the unfortunate position of having to leave their country of citizenship behind to accompany the parents, or arrange for living situations within the United States, perhaps with a relative, but be separated from their parents. The compelling interests raised by the removability of parents in such circumstances have given rise to distinct forms of relief under domestic legal systems. The United Kingdom, in a recent decision by its Supreme Court, has held that the best interests of the child are a primary consideration in determining whether the removal of the parent would be proportionate. Likewise, the United States provides for certain types of relief from removal for the parents of United States citizen children. Yet neither regime is entirely satisfactory. The United Kingdom’s approach is unduly biased towards non-removability, whereas the standards for establishing relief from removal in the United States are onerous and will be rarely met in practice. The purpose of this article is to propose a balancing of the interests that takes a realistic look both at the compelling interest citizen children have to remain in their country as part of a family unit and the competing interests of the state in a fully and fairly functioning immigration system. Such balancing is liable to make all parties unhappy—not every non-citizen parent should be permitted to remain simply on the fact of that parentage, and, conversely, not every removable parent should be removed simply because they are present illegally—yet it is the only feasible option to a problem that is only likely to grow in the coming decades

The Case for Chevron Deference to Immigration Adjudications

Chevron skepticism is in vogue in legal academia, as Professors Shoba Wadhia and Christopher Walker’s recent entry in the genre demonstrates. They place their project within the broader academic trend of arguing for limitations on the application of deference to various administrative decisions, but their aim is ultimately narrower— to show that “this case against Chevron has . . . its greatest force when it comes to immigration.” The Professors are incorrect. Immigration adjudication presents one of the strongest cases for deference to administrative adjudication. This case is founded in the text of the statute itself and its myriad general and specific delegations of authority to the Attorney General, the expertise of the agency which has honed its interpretive enterprise through adjudicating tens of thousands of cases annually, and the ultimate political accountability of the agency head in immigration adjudication. For these reasons, the Supreme Court has applied Chevron deference to immigration adjudications since the very foundation of that framework. Although they advance an interesting contrarian thesis, the Professors ultimately provide no sound basis for retreating from four decades of established jurisprudence

“To Remand, or Not to Remand”: Ventura’s Ordinary Remand Rule and the Evolving Jurisprudence of Futility

It is a foundational principle of administrative law that a reviewing court should not dispose of a petition for review or appeal on grounds not relied upon by the agency, and should not reach issues in the first instance not addressed administratively. In such circumstances, there is a strong presumption that the reviewing court should remand the case to the agency for further proceedings rather than reach out to decide the disputed issues. The United States Supreme Court explicitly extended operation of the “ordinary remand rule” to the immigration context in its 2002 decision in INS v. Ventura. Notwithstanding subsequent Supreme Court clarifications of how this rule operates in immigration law, several federal courts of appeals have begun to develop a jurisprudence of futility, declining to remand cases to the Board of Immigration Appeals, despite errors in the underlying decision, in certain set circumstances. This article assesses this evolving jurisprudence with the aim of discerning whether it is somehow complementary to the “ordinary remand rule,” or runs afoul of the general remand prescription. In fact, many of the cases in which courts have held remand would be futile have little, or nothing to do with the courts’ authority to remand, while a number of the other cases surveyed represent legitimate exercises of the courts’ discretion to decline remand. Nonetheless, several decisions either explicitly contradict the Supreme Court’s remand directive, or give hints that, in certain cases, the court would feel free to decide an issue delegated to the agency’s discretion, even in the absence of an administrative decision in the first instance. Although the decision of whether to hold and decide a case, or whether to remand to the agency for further proceedings, is necessarily a subjective and discretionary determination, the article concludes that there are broad operating procedures that may appropriately govern the exercise of this discretion, ensuring that both reviewing courts and administrative agencies fulfill their mandates

The Case for \u3ci\u3eChevron\u3c/i\u3e Deference to Immigration Adjudications

Chevron skepticism is in vogue in legal academia, as Professors Shoba Wadhia and Christopher Walker’s recent entry in the genre demonstrates. They place their project within the broader academic trend of arguing for limitations on the application of deference to various administrative decisions, but their aim is ultimately narrower—to show that “this case against Chevron has * * * its greatest force when it comes to immigration.” The Professors are incorrect. Immigration adjudication presents one of the strongest cases for deference to administrative adjudication. This case is founded in the text of the statute itself and its myriad general and specific delegations of authority to the Attorney General, the expertise of the agency which has honed its interpretive enterprise through adjudicating tens of thousands of cases annually, and the ultimate political accountability of the agency head in immigration adjudication. For these reasons, the Supreme Court has applied Chevron deference to immigration adjudications since the very foundation of that framework. Although they advance an interesting contrarian thesis, the Professors ultimately provide no sound basis for retreating from four decades of established jurisprudence

INTERRING THE IMMIGRATION RULE OF LENITY

The immigration rule of lenity has haunted immigration jurisprudence since its initial iteration in 1947. But as with any spectral entity, its existence is more ephemeral than real. The rule was meant to be a tiebreaker of sorts: a canon that where a provision of the immigration laws was ambiguous, the courts should impose the more lenient construction. It has never, however, been the dispositive basis for a holding of the Supreme Court. Rather, to the extent it has been referenced, it has been trotted out only as a rhetorical device to sanction a decision reached on other grounds. Even this rhetorical role has been called into question with the advent of Chevron deference. The raison d’ˆetre of the rule was to provide the basis of decision when the court was confronted with two equally plausible interpretations of a statutory provision. Chevron now fills that gap, and there seems no room left for the immigration rule of lenity in modern administrative law. Rather than continue to allow this outmoded rule of decision to stalk argumentation in immigration cases, the Supreme Court should simply euthanize and inter the rule at the earliest opportunity