Vanderbilt Law School Faculty Works

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Welcome to the Vanderbilt Law School's Faculty Works collection. This open access collection includes published scholarly works.

For more information about the collection contact Deborah Schander, Associate Director for Public Services and Lecturer in Law.

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Oversight Riders
(Notre Dame Law Review, 2021) Stack, Kevin M.; Vandenbergh, Michael P.
Congress has a constitutionally critical duty to gather information about how the executive branch implements the powers Congress has granted it and the funds Congress has appropriated. Yet in recent years the executive branch has systematically thwarted Congress’s powers and duties of oversight. Congressional subpoenas for testimony and documents have met with blanket refusals to comply, frequently backed by advice from the Department of Justice that executive privilege justifies withholding the information. Even when Congress holds an official in contempt for failure to comply with a congressional subpoena, the Department of Justice often does not initiate criminal sanctions. As a result, Congress has resorted to enforcing its subpoenas in civil litigation, with terrible results. Civil enforcement, if any, occurs years after the information was sought, practically eliminating the information’s practical and political value. Changes in administrations can be expected to affect the willingness of the executive branch to thwart congressional oversight, but the problem will remain until systemic reforms discourage the most egregious forms of executive evasion. To overcome this reliance on judicial enforcement of its oversight powers, Congress needs to think more creatively and aggressively. One way of doing so, which we defend in this Article, is using Congress’s powers of the purse to condition funding to agencies on their compliance with congressional oversight requests, employing what we call oversight riders. By denying funding to executive agencies’ resistance to oversight, Congress can create personal legal incentives for executive branch officials to comply. The Article concludes by considering whether other underenforced regimes, including requirements addressing political activity, ethics, and transparency, might also be protected by similar riders.
Brown, Massive Resistance, and the Lawyer's View: A Nashville Story
(Vanderbilt Law Review, 2021) Sharfstein, Daniel
Every grassroots story complicates what we already know, and the history of Cecil Sims and his world stands out in at least two important ways. First, Sims's work on issues relating to segregated education predates Brown. In the late 1940s, as Southern states responded to Supreme Court decisions desegregating graduate education, Sims assumed a central role in developing nominally race-neutral proposals that involved a series of complex transactions and legal forms. Just as the Civil Rights Movement began years before Brown and the Montgomery Bus Boycott, Sims is emblematic of the segregated South's "long history" of resistance to civil rights. Scholars have discussed how massive resistance moderated in the mid-1960s and assumed more race-neutral forms. But that transformation was not a simple story of evolution and reactive change, necessitated by passage of the Civil Rights Act of 1964 or the exigencies of litigation and its "chastening effect" after years of countering civil rights lawsuits, challenging statutes, and losing in court.' Sims's story suggests that the arguments that massive resistance mellowed into were there all along-lost in the glare, perhaps, but taking root in the shadows.
4°C
(Minnesota Law Review, 2021) Ruhl, J.B.; Craig, Robin K.
In March 2020, while the world's attention was focused on the coronavirus pandemic, an international team of eighty-nine polar scientists from fifty organizations reported that Greenland and Antarctica are losing ice six times faster than they were in the 1990s. Based on satellite data, the research team concluded that "if the current melting trend continues, the regions will be on track to match the 'worst-case' scenario of the Intergovernmental Panel on Climate Change (IPCC) of an extra 6.7 inches (17 centimeters) of sea-level rise by 2100." One month later, in Siberia, "the small town of Verkhoyansk (67.5°N latitude) reached 100.4 degrees Fahrenheit, 32 degrees above the normal high temperature" and "likely the hottest temperature ever recorded in Siberia and also the hottest temperature ever recorded north of the Artic Circle, which begins at 66.5°N." All around the town, the Arctic tundra was burning. This was not an anomaly, but rather the leading edge of a trend. Throughout the Northern Hemisphere, wildlife danger is expanding northward: before enflaming the Arctic in 2020, wildfire devastated large parts of Norway, Sweden, and Scotland in the summer of 2019.
Extending Democracy
(The University of Pacific Law Review, 2021) Rubin, Edward
This article proposes a different rationale for corporate democracy, one that extends more broadly to all forms of employment. It is based on an equivalence, not an analogy. The equivalence is that subordination feels essentially the same to an individual whether a public or a private entity is carrying it out. As recognized in the public arena, it undermines people’s dignity and autonomy, and at least threatens—and often produces—actual oppression. Based on this equivalence, this article proposes a different argument for corporate democracy. Proponents of democracy in the public sphere believe that the citizens of a nation should control its government. For the same reason, it can be argued that those who work for a living should control the institutions for which they work. Thus, the norms of democracy, when translated into the economic realm, yield the principle that no person should work for their livelihood on terms established by another person. This can be called the principle of popular economic sovereignty. The operational argument that can instantiate this assertion of equivalence between the state and the corporation is etiological. Both institutions, in their modern form, developed from Medieval corporativist thought. They are conceived as juridical persons, entities that are capable of independent action. As such, they have an equivalent capacity to dominate and oppress the individuals that they control. The way to provide these individuals with a sense of autonomy and protect them from oppression is to constitute them as a separate juridical entity that is authorized to control the state or the corporation, either directly or—in cases where the state or corporation is large—through chosen representatives.
Federal Corporate Law and the Business of Banking
(University of Chicago Law Review, 2021) Ricks, Morgan; Menand, Lev
The only profit-seeking business enterprises chartered by a federal government agency are banks. Yet there is barely any scholarship justifying this exception to state primacy in U.S. corporate law. This Article addresses that gap. It reinterprets the National Bank Act (NBA) the organic statute governing national banks, the heavyweights of the financial sec- tor-as a corporation law and recovers the reasons why Congress wrote this law: not to catalyze private wealth creation or to regulate an existing industry, but to solve an economic governance problem. National banks are federal instrumentalities charged with augmenting the money supply-- a delegated sovereign privilege. Congress recruited private shareholders and managers to run these instrumentalities as a check on monetary overissue and to prevent politicized asset allocation by government officials-a form of premodern agency independence. Viewing the NBA as a corporation law yields surprising dividends. First, it exposes a major flaw at the heart of U.S. banking jurisprudence. In recent decades, the Supreme Court and the Office of the Comptroller of the Currency (OCC), the chartering authority for national banks, have interpreted national banks' corporate powers expansively, allowing them to enter a vast range of new business lines. But the corporate powers provision of the NBA is not a regulatory statute to which courts should apply Chevron deference, nor is it part of the OCC's enabling act. It is part of the corporate charters of national banks. Accordingly, the opposite, settled rule of construction applies: ambiguity is construed strictly against the corporation. Second, interpreting the NBA as a corporation law reveals that the OCC's current campaign to unhitch national bank charters from the deposit business lacks a statutory basis and threatens an unprecedented colonization of U.S. enterprise law by a federal government agency that is ill-suited to this mission and was never congressionally tasked with it.
How to Treat the WTO's Problem with Precedent
(Vanderbilt Journal of Transnational Law, 2021) Meyer, Timothy
This Article argues that the World Trade Organization's Appellate Body (AB), or a successor body, must become more transparent in justifying its decision to rely (or not) on prior decisions. The AB's practice of precedent-which the United States cited as a cause of its decision to paralyze the AB by blocking new appointments-is similar to how it has approached "likeness" in nondiscrimination cases. It placed a lot of weight on whether two cases (or products) are sufficiently similar to be compared, and it spent relatively less time substantively justifying its treatment of prior cases. Because the WTO does not have a system of stare decisis, the AB and WTO panels generally must explain why they find prior decisions persuasive, rather than simply relying on similarity to justify carrying prior interpretations forward. The Article begins by examining and evaluating the results of a new study from Jeffrey Kucik and Sergio Puig, the first study to use a large dataset to study the AB's use of precedent. The Article then advances a framework for how WTO dispute panels should evaluate the relevance of prior cases in future disputes. The proposed approach would treat the comparison of cases as merely a threshold inquiry. If two cases are sufficiently alike and one party contests the applicability of the prior decision, then a tribunal must substantively justify its treatment of the prior decision in light of a variety of factors. In some instances, the result may be that the AB or a panel acknowledges that a prior interpretation was wrong and should not be followed. Openly analyzing the persuasive value of prior cases, and acknowledging when those cases should not be followed, would better promote the goals of relying on prior decisions-promoting predictability, transparency, and coherence in the law's application-as compared to deference to prior decisions based only on the similarity of two disputes.
Direct-to-Consumer Genetic Testing: Prospective Users' Attitudes Toward Information About Ancestry and Biological Relationships
(PLoS One, 2021) Clayton, Ellen W.; Hazel, J.W.; et, al.
Direct-to-consumer genetic testing is marketed as a tool to uncover ancestry and kin. Recent studies of actual and potential users have demonstrated that individuals’ responses to the use of these tests for these purposes are complex, with privacy, disruptive consequences, potential for misuse, and secondary use by law enforcement cited as potential concerns. We conducted six focus groups with a diverse sample of participants (n = 62) who were aware of but had not used direct-to-consumer genetic tests, in an effort to understand more about what people considering these tests think about the potential value, risks, and benefits of such testing, taking into account use by third parties, such as potential kin and law enforcement. Participants differed widely in the perceived value of direct-to-consumer genetic tests for ancestry and kinship information for their own lives, including the desirability of contact with previously unknown relatives. Some perceived ancestry testing as mere curiosity or entertainment, while others, particularly those who had gaps in their family history, few living relatives, or who were adopted, saw greater value. Concerns about intrusion into one’s life by purported kin and control of data were widespread, with many participants expressing concern about secondary uses of data that could harm users or their families. The use of direct-to-consumer genetic tests data for forensic genealogy elicited a particularly wide array of reactions, both spontaneously and in response to specific discussion prompts, mirroring the current public debate about law enforcement access to such data. The themes uncovered through our investigation warrant specific attention in the continued development of the science, policy, and practice of commercial direct-to-consumer genetic testing.
Distributing Attorney Fees in Multidistrict Litigation
(Journal of Legal Analysis, 2021) Edelman, Paul H.; Cheng, Edward K.; Fitzpatrick, Brian T.
As consolidated multidistrict litigation has come to dominate the federal civil docket, the problem of how to divide attorney fees among participating firms has become the source of frequent and protracted litigation. For example, in the National Football League (NFL) Concussion Litigation, the judge awarded the plaintiff attorneys over $100 million in fees, but the division of those fees among the twenty-six firms involved sparked two additional years of litigation. We explore solutions to this fee division problem, drawing insights from the economics, game theory, and industrial organization literatures. Ultimately, we propose a novel division method based on peer reports. Participating firms assess the relative contribution of other firms to the litigation, and then optimization or Bayesian techniques arrive at a consensus or compromise fee allocation. Our methods are intuitively easy to understand, enable broad participation, and are resistant to collusion or other strategic behavior, making them likely to be accepted by the firms involved. We thus provide courts with an important mediation tool or decision rule for these fee division disputes.
Direct-to-Consumer Genetic Testing: Prospective Users' Attitudes Toward Information About Ancestry and Biological Relationships
(PLoS One, 2021) Clayton, Ellen W.; Hazel, James W.; et al.
Direct-to-consumer genetic testing is marketed as a tool to uncover ancestry and kin. Recent studies of actual and potential users have demonstrated that individuals’ responses to the use of these tests for these purposes are complex, with privacy, disruptive consequences, potential for misuse, and secondary use by law enforcement cited as potential concerns. We conducted six focus groups with a diverse sample of participants (n = 62) who were aware of but had not used direct-to-consumer genetic tests, in an effort to understand more about what people considering these tests think about the potential value, risks, and benefits of such testing, taking into account use by third parties, such as potential kin and law enforcement. Participants differed widely in the perceived value of direct-to-consumer genetic tests for ancestry and kinship information for their own lives, including the desirability of contact with previously unknown relatives. Some perceived ancestry testing as mere curiosity or entertainment, while others, particularly those who had gaps in their family history, few living relatives, or who were adopted, saw greater value. Concerns about intrusion into one’s life by purported kin and control of data were widespread, with many participants expressing concern about secondary uses of data that could harm users or their families. The use of direct-to-consumer genetic tests data for forensic genealogy elicited a particularly wide array of reactions, both spontaneously and in response to specific discussion prompts, mirroring the current public debate about law enforcement access to such data. The themes uncovered through our investigation warrant specific attention in the continued development of the science, policy, and practice of commercial direct-to-consumer genetic testing.
The Wicked Problem of Zoning
(Vanderbilt Law Review, 2020) Serkin, Christopher
Zoning is the quintessential wicked problem. Professors Rittel and Webber, writing in the 1970s, identified as "wicked" those problems that technocratic expertise cannot necessarily solve.' Wicked problems arise when the very definition of the problem is contested and outcomes are not measured by "right and wrong" but rather by messier contests between winners and losers. This accurately characterizes the state of zoning and land use today. Zoning is under vigorous and sustained attack from all sides. Conservatives have long decried regulatory interference with private development rights. More recently, progressive housing advocates have begun to criticize zoning for making thriving cities unaffordable and for exacerbating racial segregation. Environmentalists argue that zoning is responsible for urban sprawl and for increasing carbon emissions. Economists blame zoning for restricting residential mobility, which limits fluidity in labor markets and thereby reduces the agglomeration surplus that thriving places like New York and San Francisco should be producing. And these are just some of the concerns. The breadth of these criticisms reveals the multiplicity of issues implicated by modern zoning--from the balance of public power and private rights, to distributional concerns, environmental interests, economic efficiency, and externalities along many dimensions. Most do not admit of a single "right" answer. Zoning is a wicked problem, indeed. In true "wicked" fashion, it is difficult even to explore answers because of the predictable and entrenched interests in almost any zoning dispute. Invariably, efforts to loosen zoning restrictions in order to increase density will face fierce opposition from nearby neighbors who oppose change-so-called NIMBYs ("Not in My Back Yard") or Neighborhood Defenders. Such neighbors typically object to changes to the character of their community, increased burdens on local infrastructure, changing demographics, community affordability, and change for its own sake.
Designing Law to Enable Adaptive Governance of Modern Wicked Problems
(2020) Cosens, Barbara A.; Ruhl, J.B.; Soininen, Niko; Gunderson, Lance
This Article contributes to the development of adaptive governance theory by articulating and situating the role of formal law and government as the facilitator, but not central controller, of adaptive governance. To advance the understanding of adaptive governance, we argue that it can be understood in the broader context of scholarship covering the observed emergence of new governance, the efforts to develop theoretical understandings through decentered theory, and the refinement of constitutional understanding through democratic experimentalism. Synthesis of these three themes in turn informs the role of law and government in working with emergent governance responses to complexity to manage change and wicked problems. This inter- and transdisciplinary exercise reveals that the role of law and government in adaptive governance is to leave space for local innovation and private governance. Law and government must provide the catalyzation, facilitation, steering, and oversight essential for public and private institutions to respond at the rate and complexity of change in large-scale social-ecological systems, and they must do so while advancing good governance.
Introduction: Governing Wicked Problems
(Vanderbilt Law Review, 2020) Ruhl, J.B.; Salzman, James
"Wicked problems." It just says it all. Persistent social problems--poverty, food insecurity, climate change, drug addiction, pollution, and the list goes on--seem aptly condemned as wicked. But what makes them wicked, and what are we to do about them? The concept of wicked problems as something more than a generic description has its origins in the late 1960s. Professor Horst Rittel of the University of California, Berkeley, Architecture Department posed the term in a seminar to describe "that class of social system problems which are ill-formulated, where the information is confusing, where there are many clients and decision makers with conflicting values, and where the ramifications in the whole system are thoroughly confusing." Rittel and his colleague Melvin Webber later refined the concept in a 1973 publication, Dilemmas in a General Theory of Planning, in which they developed their now-famous list of ten distinguishing properties of wicked problems. ... To a large extent, however, the fame of Rittel and Webber's ten-point list has overshadowed the deeper governance theory they developed in their article. The vast majority of the publications citing Rittel and Webber's article do so simply to adopt the concept of wicked problems, with a quick sentence or two about what Rittel and Webber had in mind about wickedness (often with The List set out), to fit the problem under consideration into that category of social problems. It is as if without the prefix "wicked" a problem is not worthy of scholarly attention. This is overwhelmingly the pattern in legal scholarship: the author claims a social problem is a wicked problem, cites Rittel and Webber, and that is the last we hear of them and of the concept. Only on rare occasion do legal scholars leverage Rittel and Webber more comprehensively, and even then it is usually to crunch through the ten characteristics rather than engage their broader commentary on the challenges of modern governance. The small subset of articles grappling with the wicked problems concept as part of a theory of governance appears mainly in policy science and planning journals. The purpose of this Article is to close that gap--to provide in legal scholarship a concise summary of wicked problems theory from its roots in Rittel and Webber's article through its evolution in policy science and planning scholarship. Not coincidentally, this sets the stage for introducing the theme of the Vanderbilt Law Review's 2019 Symposium, Governing Wicked Problems, and the other articles in this Symposium issue.
A Global Assessment of the Law and Policy of Ecosystem Services
(University of Queensland Law Journal, 2020) Ruhl, J.B.; Salzman, James
This article assesses the approaches that different national governments have employed to provide and conserve ecosystem services, focusing on policy instruments and common-law court decisions. Applying the lessons learned from this review, we address strategies for conservation of mangrove ecosystem services in Australia, focusing on the importance of creating a strong political mandate and demonstrating a clear connection between mangrove conservation and the benefits provided by mangrove services. This requires further research on which beneficiaries would be harmed, and by how much, if the mangrove service flows are reduced. Policy uptake can be slow. It has taken years in other jurisdictions for policies protecting ecosystem services to be adopted, and this will likely be the path in Australia as well.
Cutting Class Action Agency Costs: Lessons from the Public Company
(University of California at Davis Law Review, 2020) Rose, Amanda M.
The agency relationship between class counsel and class members in Rule 23(b)(3) class actions is similar to that between executives and shareholders in U.S. public companies. This similarity has often been noted in class action literature, but until this Article no attempt has been made to systematically compare the approaches taken in these two settings to reduce agency costs. Class action scholars have downplayed the importance of the public company analogy because public companies are subject to market discipline and class actions are not. But this is precisely why the analogy is useful: because public companies are subject to market discipline, the tools they utilize to reduce agency costs are more likely to be efficient. This Article looks to those tools as inspiration for class action reform, proposing several novel ways to improve current practice.
Deconstructing Invisible Walls: Sotomayor's Dissents in Era of Immigration Exceptionalism
(William & Mary Journal of Race, Gender, & Social Justice, 2020) McKanders, Karla
Since 2017, the U.S. Supreme Court has granted certiorari and considered twenty immigration cases.2 In 2019, the Supreme Court issued eight decisions focusing on immigration. There are many different theories accounting for the proliferation of immigration cases on the Supreme Court's docket. Some immigration scholars attribute the proliferation to the decline of the plenary powers doctrine, while others attribute the increase in the executive branch's unilateral actions restricting immigration in the United States. With the proliferation of immigration cases before the Supreme Court, Justice Sonia Sotomayor has emerged as a strong voice of dissent. Over the past few terms, Sotomayor has written more dissents than any other Justice.' The Article examines the impact her dissents have on the theme of this symposium, Justice Along Borders. This Article focuses on how Justice Sotomayor's recent immigration dissents force us to grapple with how the long-standing plenary powers doctrine has privileged borders over our most sacred legal commitments-fundamental rights under the constitution and adherence to rule of law. This Article argues that Justice Sotomayor's immigration decisions provide a significant break in historical deference to executive actions and are forcing us to reconceptualize the ways in which the immigration system historically has abrogated the rights of immigrants of color.
Detecting Mens Rea in the Brain
(University of Pennsylvania Law Review, 2020) Jones, Owen D.; Montague, Read; Yaffe, Gideon
Mental states matter. Consequently, we and colleagues designed and executed a brain-imaging experiment attempting to detect-for the first time-differences between mental states relevant to criminal law. Imagine you've just killed someone in Colorado. It was not your purpose or desire to kill him. Nevertheless, another human being is dead. Arrested and on trial, you do not dispute that your action unjustifiably caused his death. But whereas the prosecutor argues that you knew someone would die as an inevitable by-product of your actions, you assert in your defense that you knew no such thing. Instead (you claim) you were merely reckless. That is, you acted as you did with awareness of a substantial risk that someone would be fatally injured, but without knowing you would kill anyone. In Colorado, as in many states, there is a huge difference in the sentencing ranges for those convicted of knowing and reckless homicides. In Colorado it means the difference between being sentenced to sixteen to forty-eight years in prison and none. So your fate rests in the hands of lay jurors who will decide what your mental state was at the time of the fatal act. Specifically: Did you know you would kill someone, or were you merely aware of a risk that you would? Now, any plausible theory of the point or purpose of meting out punishment to offenders-whether utilitarian, retributivist or expressivist-will recognize good reasons to condition punishment, or its amount, on the offender's mental state. Mental states matter to the nature and severity of incentives to which human behavior is sensitive, to moral desert, and to society's collective outrage. But, whatever its rationale, the practice of predicating differences in punishment on differences in mental state means that you now face two large problems ignored by our current criminal justice system.
Detecting Mens Rea in the Brain
(University of Pennsylvania Law Review, 2020) Jones, Owen D.
Mental states matter. Consequently, we and colleagues designed and executed a brain-imaging experiment attempting to detect-for the first time-differences between mental states relevant to criminal law. Imagine you've just killed someone in Colorado. It was not your purpose or desire to kill him. Nevertheless, another human being is dead. Arrested and on trial, you do not dispute that your action unjustifiably caused his death. But whereas the prosecutor argues that you knew someone would die as an inevitable by-product of your actions, you assert in your defense that you knew no such thing. Instead (you claim) you were merely reckless. That is, you acted as you did with awareness of a substantial risk that someone would be fatally injured, but without knowing you would kill anyone. In Colorado, as in many states, there is a huge difference in the sentencing ranges for those convicted of knowing and reckless homicides. In Colorado it means the difference between being sentenced to sixteen to forty-eight years in prison and none.' So your fate rests in the hands of lay jurors who will decide what your mental state was at the time of the fatal act. Specifically: Did you know you would kill someone, or were you merely aware of a risk that you would? Now, any plausible theory of the point or purpose of meting out punishment to offenders-whether utilitarian, retributivist or expressivist-will recognize good reasons to condition punishment, or its amount, on the offender's mental state. Mental states matter to the nature and severity of incentives to which human behavior is sensitive, to moral desert, and to society's collective outrage. But, whatever its rationale, the practice of predicating differences in punishment on differences in mental state means that you now face two large problems ignored by our current criminal justice system.
Objector Blackmail Update: What Have the 2018 Amendments Done?
(Fordham Law Review, 2020) Fitzpatrick, Brian T.
In Part I of this Essay, I describe the problem of objector blackmail, why prohibiting side payments to objectors would be the best way to screen blackmail-minded objections from other objections, and why I did not think the new FRCP 23(e)(5)(B) would do so as effectively. In Part II, I examine what district courts have done with their new side payment approval authority over the first sixteen months. I found six orders by district courts on whether to approve side payments: four approvals and two denials. Although this is not much data, qualitative review of the orders does not inspire confidence that district court judges will have the requisite backbone to reject blackmail-minded side payments. On the other hand, the approved side payments may be less lucrative under the new rule. In Part III, I try to assess how these two contrary forces might weigh against each other by studying empirically whether the new rule has discouraged class action objectors from taking appeals. Although my methods are crude, they suggest there has been no slowdown in these appeals in the first year of the new rule.
The Tale of the Fee Tail in Downton Abbey
(Vanderbilt Law Review, 2015) Ruhl, J. B.
Under the fee tail arrangement at work in Downton Abbey, known as a fee tail male, possession of the property passes from the first grantee of the entailed estate, who (of course) is a male, to his lineal male heirs. Because of rules of primogeniture prevailing at the time, the estate passed to the grantee's oldest son. Then that male heir passes the estate on to his oldest son, who passes it to his oldest son, and so on. But what if the fifth lucky fellow in this chain has no sons? In that sad state of affairs, the estate will hunt around for another male heir in the lineage from the original grantee of the estate in fee tail male. If there are no such heirs, the estate reverts to the original grantor (or his assignees or heirs). Either way, the wife and daughters of the gentleman in this predicament are out of luck, which illustrates the point of the fee tail-to prevent the estate from leaking outside the family.
A Near Term Retrospective on the Al-Dujail Trial & the Death of Saddam Hussein
(Transnational Law and Contemporary Problems, 2008) Newton, Michael A.
Saddam Hussein al-Tikriti died at the hands of Iraqi officials at dawn on December 30, 2006, following a tumultuous fourteen month trial3 for crimes committed against the citizens of a relatively obscure Iraqi village known as al-Dujail. Maintaining his façade of disdain when the verdict and sentence were announced on November 5, 2006, Saddam entered the courtroom with an arrogant strut and refused to stand until the guards made him do so to hear the judge’s opinion... Following the trial, Saddam died as a convicted criminal whose crimes were documented in a 283 page judgment. The opinion is a thorough and organized catalogue of the factual record of evidence from the trial and the investigative file. The Trial Judgment carefully assesses the elements of each charged offense, along with the relevant mens rea demonstrated by the available evidence, and it applies the relevant domestic and international law to each and every charge against each of the eight defendants in detail. Although Saddam’s execution does undercut the “expressive value” of the subsequent and important trials that remain, its legal foundations, factual findings, and judicial inferences are preserved in the extensive opinion for the world, and particularly Iraqis, to read and analyze. The grossly sectarian overtones of the botched execution do not negate the entirety of the publicly accessible trial sessions, in which the defense presented more than sixty witnesses and the prosecution introduced more than twenty witnesses (termed complainants in Iraqi law). The flawed execution is an incomplete snapshot of the legal process that brought down Saddam. Saddam’s execution rekindles memories of the confrontational cross-examination of Herman Goering, whose theatrical performance appeared to make him overshadow the Chief Prosecutor, Robert H. Jackson, who served as U.S. Solicitor General and Supreme Court Justice. Just as Goering’s short term triumph is not today remembered as a metaphor for the entire International Military Tribunal at Nuremberg the botched execution of Saddam does not encapsulate all that is memorable or important about the first complete trial held by the Iraqi High Criminal Court.

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