Volume 2011, Number 4

The 2011–2012 Board of Editors is pleased to present Issue 4 of the 2011 Volume.

First, Professor Steven L. Schwarcz discusses how innovative legal structures can enable microfinance loans to be funded directly from lower-cost, and virtually limitless, capital market sources by removing, or “disintermediating,” the need for a bank intermediary. He identifies and attempts to resolve the resulting law and business issues of first impression and also examines, more normatively, the extent to which microfinance lending should rely on capital market funding sources.

Next, Professors Afsheen John Radsan & Richard Murphy discuss CIA-targeted killings, the foundational international humanitarian law (IHL) principles to develop limits on the CIA’s campaign in Pakistan and on the possible extension of that campaign to other countries outside the United States. In particular, the authors argue that IHL’s requirements of distinction and military necessity generally require the CIA to achieve a very high level of certainty that a targeted person is a legitimate object of attack before carrying out a drone strike.

Following this, Professor Daniel B. Rodriguez discusses some fundamental aspects of constitutional government in the contemporary United States. With reference to specific examples of constitutional architecture, he explores the question of how we assess state constitutional failure and how, on the basis of this assessment, we can best undertake structural, institutional, and doctrinal reform.

Next, Professor Noah M. Sachs reassesses the Strong Precautionary Principle and highlights the significant benefits of the Principle for risk decision making, with the aim of rescuing the Principle from its dismissive critics. He uses chemical regulation and the major overhaul that Congress is considering of the flawed Toxic Substances Control Act of 1976 (TSCA), as a case study in how the Principle can guide Congress in an ongoing controversy. In particular, he advocates implementing the Strong Precautionary Principle in a replacement statute for TSCA.

The issue continues with the David C. Baum Lecture by Professor Frederick Schauer in which he discusses the challenges associated with the often-touted virtues of transparency in public decision making, offering a proposed framework for assessing the goals and principles associated with transparency, transparency’s costs and benefits, and how transparency is related to other principles, including those of the First Amendment.

The issue concludes with three student notes by Melissa CarringtonMatthew D. Friedlander, and Ryan M. Rappa.


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