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    Yale Law Journal: Volume 124, Number 1 - October 2014
    Yale Law Journal: Volume 124, Number 1 - October 2014
    Yale Law Journal: Volume 124, Number 1 - October 2014
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    Yale Law Journal: Volume 124, Number 1 - October 2014

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    The October 2014 issue of The Yale Law Journal (the first for academic year 2014-2015) features new articles on law and legal theory by internationally recognized scholars. Contents include:
    --Article, "Self-Help and the Separation of Powers," by David E. Pozen
    --Article, "Criminal Attempts," by Gideon Yaffe
    --Note, "The Rise of Institutional Mortgage Lending in Early Nineteenth-Century New Haven," by Steven J. Kochevar
    --Comment, "SEC 'Monetary Penalties Speak Very Loudly,' But What Do They Say? A Critical Analysis of the SEC's New Enforcement Approach," by Sonia A. Steinway
    --Comment, "Contract After Concepcion: Some Lessons from the State Courts," by James Dawson
    This quality ebook edition features linked notes, active Contents, active URLs in notes, and proper Bluebook formatting. The Oct. 2014 issue is Volume 124, Number 1.

    LanguageEnglish
    PublisherQuid Pro, LLC
    Release dateNov 3, 2014
    ISBN9781610278515
    Yale Law Journal: Volume 124, Number 1 - October 2014
    Author

    Yale Law Journal

    The editors of The Yale Law Journal are a group of Yale Law School students, who also contribute Notes and Comments to the Journal’s content. The principal articles are written by leading legal scholars.

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      Book preview

      Yale Law Journal - Yale Law Journal

      THE YALE LAW JOURNAL

      VOLUME 124, NUMBER 1

      OCTOBER 2014

      Yale Law School

      New Haven, Connecticut

      Smashwords edition. Copyright © 2014 by The Yale Law Journal Company, Inc. All rights reserved. This work or parts of it may not be reproduced, copied or transmitted (except as permitted by sections 107 and 108 of the U.S. Copyright Law and except by reviewers for the public press), by any means including voice recordings and the copying of its digital form, without the written permission of the print publisher. Further information on copyright, permissions, and reprints is found at the Responses page.

      Published by The Yale Law Journal. Digitally published in ebook editions, for The Yale Law Journal, by Quid Pro Books, at Smashwords. Available in all major digital formats and at leading retailers and booksellers.

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      Cataloging (Volume 124, Number 1):

      ISBN 978-1-61027-851-5 (ebk)

      CONTENTS

      ARTICLES

      Self-Help and the Separation of Powers

      David E. Pozen     (124 YALE L.J. 2)

      Criminal Attempts

      Gideon Yaffe     (124 YALE L.J. 92)

      NOTE

      The Rise of Institutional Mortgage Lending in Early Nineteenth-Century New Haven

      Steven J. Kochevar     (124 YALE L.J. 158)

      COMMENTS

      SEC Monetary Penalties Speak Very Loudly, But What Do They Say? A Critical Analysis of the SEC’s New Enforcement Approach

      Sonia A. Steinway     (124 YALE L.J. 209)

      Contract After Concepcion: Some Lessons from the State Courts

      James Dawson     (124 YALE L.J. 233)

      About the Yale Law Journal

      RESPONSES. The Yale Law Journal invites short papers responding to scholarship appearing in the Journal within the last year. Responses should be submitted to the Yale Law Journal Forum at http://ylj.yalelawjournal.org/authors/index.html. We cannot guarantee that submitted responses will be published. Responses selected for publication will be edited with the cooperation of the author.

      The Yale Law Journal is published eight times a year (monthly from October through June, with a single issue for January and February) by The Yale Law Journal Company, Inc. Editorial and general offices are located in the Sterling Law Building at Yale University. POSTMASTER: Send address changes to Yale Law Journal, P.O. Box 208215, New Haven, Connecticut 06520-8215.

      SUBSCRIPTIONS. A year subscription for Volume 124 is $55.00 payable in advance (please see our website for overseas shipping charges). Remittance must be made by U.S. dollar drafts payable at a U.S. bank. Unfortunately, we are not able to accept payments in cash or by credit card. Subscription requests received after the first issue of a volume has been printed will run for eight consecutive issues unless otherwise indicated by the subscriber. Subscription backstarting is not permitted to include prior volume years. Overseas delivery is not guaranteed.

      CLAIMS. Domestic claims for non-receipt of issues should be made within 90 days of the month of publication, and overseas claims within 180 days. Thereafter, the regular back issue rate will be charged for replacement. All subscriptions will be renewed automatically unless the subscriber provides timely notice of cancellation prior to the start of a new volume year. Address changes must be made at least two months before publication date. Please provide an old mailing label or the entire old address; the new address must include the ZIP code. Address changes or other requests for subscription information should be directed to the Business Administrator.

      SINGLE AND BACK ISSUES. Each issue of of the Journal can be purchased prepaid from The Yale Law Journal Company, Inc., for $25 (check must accompany order). For Connecticut deliveries, add 6% state sales tax. Remittance must be made by U.S. dollar drafts payable to a U.S. bank. Unfortunately, we are not able to accept payments in cash or credit card. To purchase back issues from Volumes 1-123, please contact William S. Hein and Company, Inc., 1285 Main Street, Buffalo, New York 14209, (800) 828-7571. Back issues can also be found in electronic format on HeinOnline (http://heinonline.org) and through Volume 110 on the Yale Law Journal’s website (http://www.yalelawjournal.org).

      MANUSCRIPTS. The Journal invites the submission of unsolicited Articles, Essays, Book Reviews, and Forum pieces. Manuscripts must be submitted online at http://ylj.yalelawjournal.org/authors/index.html.

      COPYRIGHT. Copyright © 2014 by The Yale Law Journal Company, Inc. Requests for copyright permissions should be directed to Copyright Clearance Center, 222 Rosewood Drive, Danvers, MA 01923, (978) 750-8400, http://www.copyright.com.

      PRODUCTION. Citations in the Journal conform to The Bluebook: A Uniform System of Citation (19th ed. 2010), copyright by The Columbia Law Review Association, The Harvard Law Review Association, the University of Pennsylvania Law Review, and The Yale Law Journal Company, Inc. The Journal is printed by Joe Christensen, Inc., in Lincoln, Nebraska. Periodicals postage paid at New Haven, Connecticut, and additional mailing offices. Publication number ISSN 0044-0094.

      INTERNET ADDRESS. The Yale Law Journal’s homepage is located at http://www.yalelawjournal.org.

      YALE LAW SCHOOL

      OFFICERS OF ADMINISTRATION

      Peter Salovey, A.B., M.A., Ph.D., President of the University

      Benjamin Polak, B.A., M.A., Ph.D., Provost of the University

      Robert C. Post, J.D., Ph.D., Dean

      Alvin Keith Klevorick, M.A., Ph.D., Deputy Dean

      Michael J. Wishnie, B.A., J.D., Deputy Dean for Experiential Education

      S. Blair Kauffman, J.D., LL.M., M.L.L., Law Librarian

      Megan A. Barnett, B.A., J.D., Associate Dean

      Joseph M. Crosby, B.A., M.B.A., Associate Dean

      Toni Hahn Davis, J.D., LL.M., Associate Dean

      Mary Briese Matheron, B.S., Associate Dean

      Kathleen B. Overly, J.D., Ed.D., Associate Dean

      Asha Rangappa, A.B., J.D., Associate Dean

      Mike K. Thompson, M.B.A., J.D., Associate Dean

      FACULTY EMERITI

      Guido Calabresi, LL.B., Dr.Jur., LL.D., D.Phil., H.Litt.D., D.Poli.Sci., Sterling Professor Emeritus of Law and Professorial Lecturer in Law

      Dennis E. Curtis, B.S., LL.B., Clinical Professor Emeritus of Law, Professorial Lecturer in Law, and Supervising Attorney

      Harlon Leigh Dalton, B.A., J.D., Professor Emeritus of Law

      Mirjan Radovan Damaška, LL.B., Dr.Jur., Sterling Professor Emeritus of Law and Professorial Lecturer in Law

      Drew S. Days, III, B.A., LL.B., Alfred M. Rankin Professor Emeritus of Law and Professorial Lecturer in Law

      Jan Ginter Deutsch, LL.B., Ph.D., Walton Hale Hamilton Professor Emeritus of Law and Professorial Lecturer in Law

      Owen M. Fiss, M.A., LL.B., Sterling Professor Emeritus of Law and Professorial Lecturer in Law

      Robert W. Gordon, A.B., J.D., Chancellor Kent Professor Emeritus of Law and Legal History and Professor (Adjunct) of Law

      Michael J. Graetz, B.B.A., LL.B., LL.D., Justus S. Hotchkiss Professor Emeritus of Law and Professorial Lecturer in Law

      Geoffrey Cornell Hazard, Jr., M.A., LL.B., Sterling Professor Emeritus of Law

      Carroll L. Lucht, M.S.W., J.D., Clinical Professor Emeritus of Law, Supervising Attorney, and Professorial Lecturer in Law

      Carol M. Rose, J.D., Ph.D., Gordon Bradford Tweedy Professor Emeritus of Law and Organization, and Professorial Lecturer in Law

      Peter H. Schuck, M.A., J.D., LL.M., Simeon E. Baldwin Professor Emeritus of Law

      John G. Simon, LL.B., LL.D., Augustus E. Lines Professor Emeritus of Law and Professorial Lecturer in Law

      Robert A. Solomon, B.A., J.D., Clinical Professor Emeritus of Law

      Stephen Wizner, A.B., J.D., William O. Douglas Clinical Professor Emeritus of Law, Supervising Attorney, and Professorial Lecturer in Law

      FACULTY

      *    Bruce Ackerman, B.A., LL.B., Sterling Professor of Law and Political Science

      Muneer I. Ahmad, A.B., J.D., Clinical Professor of Law and Supervising Attorney

      Anne L. Alstott, B.A., J.D., Jacquin D. Bierman Professor in Taxation

      Akhil Reed Amar, B.A., J.D., Sterling Professor of Law

      Ian Ayres, J.D., Ph.D., William K. Townsend Professor of Law

      Jack M. Balkin, J.D., Ph.D., Knight Professor of Constitutional Law and the First Amendment

      Aharon Barak, LL.M., Dr.Jur., Visiting Professor of Law and Gruber Global Constitutionalism Fellow (fall term)

      Megan A. Barnett, B.A., J.D., Associate Dean

      Seyla Benhabib, B.A., Ph.D., Professor (Adjunct) of Law (fall term)

      Eyal Benvenisti, LL.M., J.S.D., Visiting Professor of Law and Peter and Patricia Gruber Fellow in Global Justice (spring term)

      Philip C. Bobbitt, J.D., Ph.D., Florence Rogatz Visiting Professor of Law (fall term)

      Lea Brilmayer, J.D., LL.M., Howard M. Holtzmann Professor of International Law

      Richard R.W. Brooks, Ph.D., J.D., Professor (Adjunct) of Law

      †    Robert Amsterdam Burt, M.A., J.D., Alexander M. Bickel Professor of Law

      Guido Calabresi, LL.B., Dr.Jur., LL.D., D.Phil., H.Litt.D., D.Poli.Sci., Sterling Professor Emeritus of Law and Professorial Lecturer in Law

      Steven G. Calabresi, B.A., J.D., Visiting Professor of Law (fall term)

      Stephen Lisle Carter, B.A., J.D., William Nelson Cromwell Professor of Law

      ‡    Amy Chua, A.B., J.D., John M. Duff, Jr. Professor of Law

      Joseph M. Crosby, B.A., M.B.A., Associate Dean

      Dennis E. Curtis, B.S., LL.B., Clinical Professor Emeritus of Law, Professorial Lecturer in Law, and Supervising Attorney

      Harlon Leigh Dalton, B.A., J.D., Professor Emeritus of Law

      Mirjan Radovan Damaška, LL.B., Dr.Jur., Sterling Professor Emeritus of Law and Professorial Lecturer in Law

      Toni Hahn Davis, J.D., LL.M., Associate Dean

      Drew S. Days, III, B.A., LL.B., Alfred M. Rankin Professor Emeritus of Law and Professorial Lecturer in Law

      Jan Ginter Deutsch, LL.B., Ph.D., Walton Hale Hamilton Professor Emeritus of Law and Professorial Lecturer in Law

      Aaron Dhir, LL.B., LL.M., Visiting Professor of Law (fall term)

      Fiona M. Doherty, B.A., J.D., Clinical Associate Professor of Law and Supervising Attorney

      ‡    Steven Barry Duke, J.D., LL.M., Professor of Law

      Zev J. Eigen, J.D., Ph.D., Irving S. Ribicoff Visiting Associate Professor of Law (spring term)

      ‡    Robert C. Ellickson, A.B., LL.B., Walter E. Meyer Professor of Property and Urban Law (spring term)

      Edwin Donald Elliott, B.A., J.D., Professor (Adjunct) of Law

      William N. Eskridge, Jr., M.A., J.D., John A. Garver Professor of Jurisprudence

      Daniel C. Esty, M.A., J.D., Hillhouse Professor of Environmental Law and Policy, School of Forestry & Environmental Studies; and Clinical Professor of Environmental Law and Policy, Law School

      Owen M. Fiss, M.A., LL.B., Sterling Professor Emeritus of Law and Professorial Lecturer in Law

      ‡    James Forman, Jr., A.B., J.D., Clinical Professor of Law and Supervising Attorney

      Emmanuel Gaillard, Ph.D., Visiting Professor of Law (spring term)

      Lech Garlicki, Doctorate in Legal Sciences, Habil. in Legal Sciences, Visiting Professor of Law and Peter and Patricia Gruber Fellow in Global Justice (spring term)

      Heather K. Gerken, B.A., J.D., J. Skelly Wright Professor of Law

      ‡    Paul Gewirtz, B.A., J.D., Potter Stewart Professor of Constitutional Law

      Abbe R. Gluck, B.A., J.D., Associate Professor of Law

      Robert W. Gordon, A.B., J.D., Chancellor Kent Professor Emeritus of Law and Legal History and Professor (Adjunct) of Law (fall term)

      Gary B. Gorton, M.A., Ph.D., Professor (Adjunct) of Law (fall term)

      Michael J. Graetz, B.B.A., LL.B., LL.D., Justus S. Hotchkiss Professor Emeritus of Law and Professorial Lecturer in Law (fall term)

      ‡    David Singh Grewal, J.D., Ph.D., Associate Professor of Law

      Moshe Halbertal, B.A., Ph.D., Florence Rogatz Visiting Professor of Law (fall term)

      Henry B. Hansmann, J.D., Ph.D., Oscar M. Ruebhausen Professor of Law

      Robert D. Harrison, J.D., Ph.D., Lecturer in Legal Method

      *    Oona Hathaway, B.A., J.D., Gerard C. and Bernice Latrobe Smith Professor of International Law

      Edward J. Janger, B.A., J.D., Maurice R. Greenberg Visiting Professor of Law (spring term)

      Christine Jolls, J.D., Ph.D., Gordon Bradford Tweedy Professor of Law and Organization

      Dan M. Kahan, B.A., J.D., Elizabeth K. Dollard Professor of Law and Professor of Psychology

      ‡    Paul W. Kahn, J.D., Ph.D., Robert W. Winner Professor of Law and the Humanities

      Johanna Kalb, M.A., J.D., Visiting Associate Professor of Law

      Amy Kapczynski, M.A., J.D., Associate Professor of Law

      S. Blair Kauffman, J.D., LL.M., M.L.L., Law Librarian and Professor of Law

      Aaron Seth Kesselheim, M.D., J.D., M.P.H., Visiting Associate Professor of Law (spring term)

      Alvin Keith Klevorick, M.A., Ph.D., Deputy Dean, John Thomas Smith Professor of Law, and Professor of Economics

      ‡    Harold Hongju Koh, A.B., J.D., Sterling Professor of International Law

      Issa Kohler-Hausmann, J.D., Ph.D., Associate Professor of Law

      Anthony Townsend Kronman, J.D., Ph.D., Sterling Professor of Law

      Mattias Kumm, 1st State Examination, J.S.D., Florence Rogatz Visiting Professor of Law (fall term)

      Douglas Kysar, B.A., J.D., Joseph M. Field ’55 Professor of Law

      Christine Landfried, Ph.D., Habilitation, Visiting Professor of Law (spring term)

      John H. Langbein, LL.B., Ph.D., Sterling Professor of Law and Legal History

      Anika Singh Lemar, B.A., J.D., Clinical Associate Professor of Law

      Margaret H. Lemos, B.A., J.D., Anne Urowsky Visiting Professor of Law (fall term)

      Sanford V. Levinson, Ph.D., J.D., Visiting Professor of Law (fall term)

      Yair Listokin, Ph.D., J.D., Professor of Law

      Carroll L. Lucht, M.S.W., J.D., Clinical Professor Emeritus of Law, Supervising Attorney, and Professorial Lecturer in Law

      ‡    Jonathan R. Macey, A.B., J.D., Sam Harris Professor of Corporate Law, Corporate Finance, and Securities Law

      Daniel Markovits, D.Phil., J.D., Guido Calabresi Professor of Law

      ‡    Jerry Louis Mashaw, LL.B., Ph.D., Sterling Professor of Law

      Mary Briese Matheron, B.S., Associate Dean

      Tracey L. Meares, B.S., J.D., Walton Hale Hamilton Professor of Law

      Noah Messing, B.A., J.D., Lecturer in the Practice of Law and Legal Writing

      Alice Miller, B.A., J.D., Associate Professor (Adjunct) of Law (spring term)

      †    John D. Morley, B.S., J.D., Associate Professor of Law

      Angela Onwuachi-Willig, B.A., J.D., Visiting Professor of Law (fall term)

      Kathleen B. Overly, J.D., Ed.D., Associate Dean

      Nicholas R. Parrillo, J.D., Ph.D., Professor of Law

      †    Jean Koh Peters, A.B., J.D., Sol Goldman Clinical Professor of Law and Supervising Attorney

      Robert C. Post, J.D., Ph.D., Dean and Sol & Lillian Goldman Professor of Law

      J.L. Pottenger, Jr., A.B., J.D., Nathan Baker Clinical Professor of Law and Supervising Attorney

      †    Claire Priest, J.D., Ph.D., Professor of Law

      ‡    George L. Priest, B.A., J.D., Edward J. Phelps Professor of Law and Economics and Kauffman Distinguished Research Scholar in Law, Economics, and Entrepreneurship

      Asha Rangappa, A.B., J.D., Associate Dean

      William Michael Reisman, B.A., J.S.D., Myres S. McDougal Professor of International Law

      Judith Resnik, B.A., J.D., Arthur Liman Professor of Law

      ‡    Cristina Rodríguez, M.Litt., J.D., Professor of Law

      Roberta Romano, M.A., J.D., Sterling Professor of Law

      Carol M. Rose, J.D., Ph.D., Gordon Bradford Tweedy Professor Emeritus of Law and Organization, and Professorial Lecturer in Law (fall term)

      *    Susan Rose-Ackerman, B.A., Ph.D., Henry R. Luce Professor of Jurisprudence (Law School and Department of Political Science)

      ‡    Jed Rubenfeld, A.B., J.D., Robert R. Slaughter Professor of Law

      Charles Frederick Sabel, A.B., Ph.D., Florence Rogatz Visiting Professor of Law

      Albie Sachs, Law, Ph.D., Visiting Professor of Law and Gruber Global Constitutionalism Fellow (fall term)

      Wojciech Sadurski, Dipl. Postgraduate Studies, Ph.D., Visiting Professor of Law (spring term)

      Peter H. Schuck, M.A., J.D., LL.M., Simeon E. Baldwin Professor Emeritus of Law

      Vicki Schultz, B.A., J.D., Ford Foundation Professor of Law and Social Sciences

      Alan Schwartz, M.A., LL.B., Sterling Professor of Law

      Scott J. Shapiro, J.D., Ph.D., Charles F. Southmayd Professor of Law and Professor of Philosophy

      Robert J. Shiller, S.M., Ph.D., Professor (Adjunct) of Law (fall term)

      ‡    Reva Siegel, M.Phil., J.D., Nicholas deB. Katzenbach Professor of Law

      Norman I. Silber, Ph.D., J.D., Visiting Professor of Law (fall term)

      James J. Silk, M.A., J.D., Clinical Professor of Law and Supervising Attorney

      John G. Simon, LL.B., LL.D., Augustus E. Lines Professor Emeritus of Law and Professorial Lecturer in Law

      Robert A. Solomon, B.A., J.D., Clinical Professor Emeritus of Law

      Kate Stith, M.P.P., J.D., Lafayette S. Foster Professor of Law

      †    Alec Stone Sweet, M.A., Ph.D., Leitner Professor of International Law, Politics, and International Studies

      Mike K. Thompson, M.B.A., J.D., Associate Dean

      Heather E. Tookes, B.A., Ph.D., Professor (Adjunct) of Law (fall term)

      ‡    Tom R. Tyler, M.A., Ph.D., Macklin Fleming Professor of Law and Professor of Psychology

      Neil Walker, LL.B., Ph.D., Sidley Austin-Robert D. McLean Visiting Professor of Law (fall term)

      Patrick Weil, M.B.A., Ph.D., Visiting Professor of Law and Peter and Patricia Gruber Fellow in Global Justice (fall term)

      †    James Q. Whitman, J.D., Ph.D., Ford Foundation Professor of Comparative and Foreign Law

      Ralph Karl Winter, Jr., M.A.H., LL.B., Professor (Adjunct) of Law (spring term)

      Michael J. Wishnie, B.A., J.D., Deputy Dean for Experiential Education, William O. Douglas Clinical Professor of Law, Supervising Attorney, and Director, Jerome N. Frank Legal Services Organization

      John Fabian Witt, J.D., Ph.D., Allen H. Duffy Class of 1960 Professor of Law

      Stephen Wizner, A.B., J.D., William O. Douglas Clinical Professor Emeritus of Law, Supervising Attorney, and Professorial Lecturer in Law

      Gideon Yaffe, A.B., Ph.D., Professor of Law and Professor of Philosophy

      Howard V. Zonana, B.A., M.D., Professor of Psychiatry and Clinical Professor (Adjunct) of Law (spring term)

      *    On leave of absence, 2014–2015.

      †    On leave of absence, fall term, 2014.

      ‡    On leave of absence, spring term, 2015.

      LECTURERS IN LAW

      Emily Bazelon, B.A., J.D.

      James Dawson, B.A., J.D.

      Gregg Gonsalves, B.S.

      Linda Greenhouse, B.A., M.S.L., Joseph Goldstein Lecturer in Law

      John Allen Grim, M.A., Ph.D.

      Mary Evelyn Tucker, M.A., Ph.D.

      VISITING LECTURERS IN LAW

      Guillermo Aguilar-Alvarez, Lic. en Derecho (J.D.)

      Yas Banifatemi, Ph.D., LL.M.

      Mark Barnes, J.D., LL.M.

      Richard Baxter, M.A., J.D., John R. Raben/Sullivan & Cromwell Visiting Lecturer in Accounting

      Stephen B. Bright, B.A., J.D., Harvey Karp Visiting Lecturer in Law

      Jay Butler, B.A., J.D.

      Lincoln Caplan, A.B., J.D., Truman Capote Visiting Lecturer in Law

      Robert N. Chatigny, A.B., J.D.

      Wayne Dale Collins, M.S., J.D.

      Victoria A. Cundiff, B.A., J.D.

      Melanie L. Fein, B.A., J.D.

      Eugene R. Fidell, B.A., LL.B., Florence Rogatz Visiting Lecturer in Law

      Gregory Fleming, B.A., J.D.

      Lawrence J. Fox, B.A., J.D., George W. and Sadella D. Crawford Visiting Lecturer in Law

      Stephen Fraidin, A.B., LL.B.

      Peter T. Grossi, Jr., M.A., J.D.

      Katherine M. Kimpel, B.A., J.D.

      Jeffrey A. Meyer, B.A., J.D.

      Charles Nathan, B.A., J.D.

      Andrew J. Pincus, B.A., J.D.

      Eric S. Robinson, M.B.A., J.D.

      Charles A. Rothfeld, A.B., J.D.

      Sarah Russell, B.A., J.D.

      John M. Samuels, J.D., LL.M., George W. and Sadella D. Crawford Visiting Lecturer in Law

      Michael S. Solender, B.A., J.D.

      David J. Stoll, B.A., J.D.

      Jacob J. Sullivan, M.Phil., J.D., Oscar M. Ruebhausen Distinguished Visiting Lecturer in National Security

      Stefan R. Underhill, B.A., J.D.

      John M. Walker, Jr., B.A., J.D., George W. and Sadella D. Crawford Visiting Lecturer in Law

      David M. Zornow, B.A., J.D.

      masthead

      Self-Help and the Separation of Powers

      DAVID E. POZEN

      [124 YALE L.J. 2 (2014)]

      ABSTRACT. Self-help doctrines pervade the law. They regulate a legal subject’s attempts to cure or prevent a perceived wrong by her own action, rather than through a mediated process. In their most acute form, these doctrines allow subjects to take what international lawyers call countermeasures—measures that would be forbidden if not pursued for redressive ends. Countermeasures are inescapable and invaluable. They are also deeply concerning, prone to error and abuse and to escalating cycles of vengeance. Disciplining countermeasures becomes a central challenge for any legal regime that recognizes them.

      How does American constitutional law meet this challenge? This Article contends that a robust set of unwritten, quasi-legal norms shapes and constrains retaliation as well as cooperation across the U.S. government, and it explores how these conventions of self-help correspond to regulatory principles that have emerged in public international law. Re-envisioning intragovernmental conflict through the lens of self-help gives us new descriptive and critical purchase on the separation of powers. By attending to the theory and practice of constitutional countermeasures, the Article tries to show, we can advance familiar debates over legislative obstruction and presidential adventurism, and we can develop richer models of constitutional contestation within and beyond the branches.

      AUTHOR. Associate Professor, Columbia Law School. For especially helpful exchanges, I thank Akhil Amar, Will Baude, Jessica Bulman-Pozen, Josh Chafetz, Adam Cox, Richard Epstein, David Fontana, Michael Gerhardt, Bernard Harcourt, Judge Brett Kavanaugh, Jeremy Kessler, Harold Hongju Koh, David Law, Daryl Levinson, Peter Margulies, Bill Marshall, Richard McAdams, Tom Merrill, Gillian Metzger, Henry Monaghan, Eric Posner, Jeff Powell, Joseph Raz, Daphna Renan, Anthea Roberts, Kim Roosevelt, Steve Sachs, Adam Samaha, Fred Schauer, Reema Shah, Jamelle Sharpe, Chris Sprigman, Peter Strauss, Adrian Vermeule, Justin Wert, Ryan Williams, and David Zionts, as well as workshop participants at Chicago, Colorado, Columbia, Hastings, NYU, Temple, and Washington University in St. Louis law schools. For financial support, I thank the William S. Friedman Faculty Research Fund.

      ARTICLE CONTENTS

      INTRODUCTION

      Sometimes people are allowed to take the law into their own hands. They may bypass the courts and the cops and take unilateral measures to cure or prevent misconduct in their midst. Across the United States, doctrines have been developed to regulate such self-help behavior in criminal justice, property, contracts, torts, and other areas of private law. In public international law, a whole subfield is devoted to the self-help issue.

      And so one might wonder: when may a U.S. government institution attempt to redress a perceived wrong by another U.S. government institution through its own action, rather than through a third-party process?¹ More specifically, when may officials in one branch of the federal government attempt to redress another branch’s perceived wrong through means that, but for that wrongdoing, would be impermissible?²

      The question goes to the core of the separation of powers; both the separateness and the balance of powers among the branches depend upon its answer. Rising levels of partisanship lend it new urgency. Yet the question never seems to get asked, at least not in these terms. American lawyers have not developed a framework for analyzing or administering self-help remedies in constitutional law. Nor have they given much attention to the unwritten practices that shape interbranch struggle more generally. The result, this Article explains, has been an imbalanced discourse around constitutional conflict and constraint—an obsession with the Constitution’s formal allocation of authorities, and relative neglect of the informal norms that determine how those authorities are wielded and disputes about them settled.

      The issues are abiding, but recent events help to underscore the stakes. Consider three legislative-executive clashes that have generated heated debate:

      1.   In January 2012, President Obama made recess appointments to top posts at the Consumer Financial Protection Bureau and the National Labor Relations Board.³ The Senate had been holding regular pro forma sessions during its holiday break in order to foreclose this option, but the Justice Department’s Office of Legal Counsel (OLC) opined that the appointments were lawful under a practical construction of the Recess Appointments Clause.⁴

      2.   In June 2012, the Department of Homeland Security announced a policy to stop deportation of, and give work authorization to, some one million undocumented immigrants who came to the country as children.⁵ This Dreamers policy mirrors the DREAM Act that successive Congresses had failed to pass. The immigration statutes do not exempt this class of individuals from deportation (hence the push for the DREAM Act), but the Justice Department defended the policy as within the scope of delegated prosecutorial discretion.⁶

      3.   Over the past several years, the Department of Education has granted more than forty states the flexibility to pursue educational reform plans that do not comply with central requirements of the No Child Left Behind Act of 2001 (NCLB).⁷ The Administration acknowledges that these waivers have effectively rewritten the regulatory framework devised by Congress, but it insists that they are justified by unintended consequences of that framework as well as by explicit statutory language.⁸

      On one prevalent view, the common thread linking these cases is the disdain they show for constitutional boundaries. The President determines to pursue a legally dubious course of action; he finds executive branch lawyers who will bless his preferred approach; and he forges ahead, heedless of the limits that Congress has placed on him. The episodes, accordingly, suggest that this president lacks a proper respect for constitutional checks and balances.⁹ Abstracting from particulars, they reveal a deep continuity between the Obama Administration and its predecessors in the contingent, instrumental approach taken to the law when important political objectives are at stake.

      This narrative is powerful. But like the Administration’s official legal analyses, it reflects a dichotomous approach to parsing presidential initiative—as either wholly consistent or inconsistent with separation-of-powers principles, supportive or corrosive of checks and balances—that obscures the dynamism and complexity of interbranch conflict. It also misses some of the most interesting features of the current constitutional period. A more refined set of conceptual tools is needed.

      Another reading of these cases is available, and it points toward a more nuanced perspective on the President’s relationship to law. On this alternative account, President Obama responded in measured terms to a profound breakdown of the policy process that had come to jeopardize the integrity of representative government. Congress was the constitutional villain. According to the Administration’s public narrative, Senate Republicans conceded the suitability of the recess appointees, yet they nevertheless stonewalled the nominations in an unprecedented effort to prevent disfavored agencies from exercising their statutory responsibilities.¹⁰ A majority of both houses voted for the DREAM Act, yet a runaway filibuster nevertheless doomed its passage in the Senate.¹¹ Congressional leaders from both parties supported overhauling NCLB, yet a dysfunctional legislative environment made that goal unattainable.¹²

      Underlying these outcomes were the familiar drivers of today’s pathological politics: the exceptional levels of internal coherence and ideological purity within the Republican and Democratic camps, the elevation of partisanship above institutional or geographic identity as the defining ethic, the relentless minoritarian blocking tactics, the permanent campaign. President Obama was faced with a Congress whose top Senate Republican had announced numerous times that [t]he single most important thing we want to achieve is for President Obama to be a one-term president,¹³ and whose top House Republicans reportedly gathered on the night of his inauguration to devise a plan to mortally wound him through united and unyielding opposition.¹⁴ This sort of maximalist obstructionism, the President has repeatedly suggested, is incompatible with the traditions of interbranch practice and the assumptions of separation-of-powers theory.¹⁵ It works a serious wrong on the American people and our scheme of governance. At the extreme, it triggers a limited right of reprisal.

      On a sympathetic reading, then, President Obama’s maneuvers can be seen as a species of constitutional self-help—attempts to remedy another party’s prior wrong rather than to ignore inconvenient legal barriers.¹⁶ His actions were meant to be preservative, not usurpative, in nature. The key to unlocking this understanding is the observation that President Obama’s denunciations of Congress consisted of more than policy critique. President Obama accused Congress of contravening not only the electorate’s political preferences but also basic constitutional conventions, unwritten quasi-legal norms that allow the branches to function. Take this reading far enough, and the President’s We Can’t Wait mantra¹⁷ comes to look less like a populist repudiation of legal limits (as in, We can’t wait for the statutes to say what I want them to say!)¹⁸ and more like an expression of intent to redeem the constitutional order (as in, We can’t wait for Congress to start policing itself and stop destroying our government!).

      There are numerous difficulties with this view, both as a description of President Obama’s behavior and as a prescription for executive practice. Some unilateral measures have no remedial value. Some are illegal regardless. Nevertheless, this reconceptualization of recent events helps to illustrate this Article’s principal claim, which is that many of the most pointed ways in which Congress and the President challenge one another can plausibly and profitably be modeled as self-help rather than self-aggrandizement, as efforts to enforce constitutional settlements rather than to circumvent them. The claim is less radical than it might seem. Even if certain of these efforts ultimately prove inconsistent with the best reading of the Constitution—as some surely will—this does not mean that as a class they defy legal rationalization. Our understanding of such constitutional contestation, I will propose, can be clarified by an analogy to the law of self-help and above all to the international law doctrine of countermeasures.

      This study has three main goals. The first is to introduce the concept of self-help into separation-of-powers analysis, with special reference to executive power. Although the concept of self-help plays a critical role in numerous bodies of law, it barely figures as such in constitutional doctrine or scholarship. Part I defines interbranch self-help and identifies it as a significant feature of our constitutional design, as well as a plausible component of a regime committed to the rule of law. In developing these points, I aim to remain as agnostic as possible about the best abstract theory of constitutional interpretation or the separation of powers.¹⁹ The methodology in this Part and throughout is to take constitutional law as it is currently practiced, and to try to reconstruct aspects of its immanent normative structure.

      The second goal is to connect the idea of constitutional self-help to the idea of constitutional conventions, and thereby to enable a richer and more realistic portrayal of both. These ideas can illuminate, for example, how and why legislative obstruction triggers executive branch reprisals. Against the backdrop of a constitutional text that assigns Congress hardly any affirmative responsibilities, constitutional conventions arguably impose on House and Senate members a much larger set of duties to the executive and to the polity more broadly. In the gridlocked, agonistic Age of Dysfunction that we now inhabit,²⁰ Part II explains, questions about these duties have taken on additional prominence. Much of today’s most vexing political behavior challenges not the interpreted Constitution, but the unwritten norms that facilitate comity and cooperation in governance. Moreover, these developments highlight the instability of the line between the two.

      The third and final goal is to draw on self-help law and theory to gain critical purchase on the U.S. government’s workings—to introduce an analytical framework that enhances our ability to interpret and assess constitutional conflict in general and the current political moment in particular. The basic dilemma posed by self-help is pervasive throughout public and private law, as Part III explains. Recognizing the distinctive features of other legal regimes should not stop constitutional lawyers from tapping their intellectual resources.

      The leading constitutional law treatments of interbranch conflict instead abstract away from remedial practices and justifications, and turn away from legal modes of reasoning altogether. They envision the branches as engaging in constitutional showdowns²¹ or playing constitutional hardball.²² These accounts valuably situate intragovernmental disputes within the framework of welfare economics (showdowns) and American political development (hardball). As suggested by the bellicose sports analogies, however, these accounts have little to say about the remedial framework in which such disputes do or could take place. They are attentive to the potential for legislative-executive struggle to generate new legal and quasi-legal understandings, but not to the ways in which unwritten norms may bear on the struggle itself. The same goes for many of the broader studies that have navigated the web of documents, practices, institutions, norms, and traditions that structure American government and comprise what is known as the small-c constitution.²³ By allowing us to interpret interbranch conflict in more law-like terms, a self-help perspective allows us to subject this conflict to closer theoretical and institutional scrutiny.

      After Part III canvasses regulatory strategies that have been used to discipline self-help, Part IV considers how these strategies map onto interbranch relations. Particular attention is paid to the most developed and apposite body of self-help law, the international law of countermeasures. Applying its standards, we can see more clearly what it is about President Obama’s approach to congressional obstruction that is problematic. We can also begin to refine our models of constitutional change and to re-envision other domains of constitutional contestation, such as state-federal conflict and intrabranch conflict. Indeed, the lines between these domains are somewhat artificial; self-help behaviors across the political branches not infrequently respond to self-help behaviors within Congress, and vice versa.

      Not only can the law of countermeasures serve as a benchmark for U.S. practice, Part IV explains, but its core prescriptions also align with the conventions that shape and constrain retaliation within the U.S. system. It is not fanciful, then, to imagine that Americans would draw on international law to fashion parallel principles for domestic self-help, as we have already groped our way to a reasonable approximation thereof. The project of elaborating and enforcing these principles will only become increasingly important if the Age of Dysfunction persists. There is ample reason to expect it will,²⁴ which makes this an auspicious time to take up the subject of constitutional countermeasures.

      I. CONSTITUTIONALLY DERIVED TOOLS AND TYPES OF INTERBRANCH SELF-HELP

      A. Definitional Preliminaries

      A study of interbranch self-help faces a threshold issue of definition. What counts? In ordinary language, self-help may refer generically to providing for or helping oneself without dependence on others, or more specifically to "the

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