Random Law Review: "Confronting the Mortgage Meltdown: A Brief for the Federalization of State Mortgage Foreclosure Law"

Grant S. Nelson, Confronting the Mortgage Meltdown: A Brief for the Federalization of State Mortgage Foreclosure Law, 37 Pepp. L. Rev. 583 (2010)

The push for legal reforms following the U.S. housing crisis is an issue I've only followed sporadically through newspaper reporting. Nelson's article is an expert, highly technical argument that the scattered and inconsistent state-by-state regulation of foreclosure should be replaced by a uniform Federal code enacted by Congress that would preempt state laws on the subject. Nelson examines other methods by which uniformity could, in theory, be created, but finds that each is lacking practice: model foreclosure legislation promulgated by the National Conference of Commissioners on Uniform State Laws has been rejected by every state; the Restatement (Third) of Property: Mortgages has been incorporated slowly by state courts; and uniform contracts butt up against state statutes which have provisions that can not be opted out of. The article briefly discusses an interesting empirical debate in the literature over whether or not uniformity actually creates efficiencies, but Nelson argues strongly for Congressional action. Interestingly, however, he seems critical of the widespread state practice of allowing foreclosure only through judicial hearings--a practice which is quite protective of homeowners.

The Random Law Review uses a combination of random.org and HeinOnline to select a random law review article published in the past few years for discussion.

"Kant, Habermas and Democratic Peace" (Random Law Review)

Robert J. Delahunty and John Yoo, Kant, Habermas and Peace, 10 Chi. J. Int'l L. 437 (2010).

An article today that is more interesting than the title might indicate. It compares two theories of how global peace can (and should) come about.

First, the "world federalism" or "cosmopolitan constitution" theory, which envisions supra-national organizations (like the United Nations or European Union) becoming larger and stronger to the point where there exists, essentially, a unified global state with an overarching government capable of exercising supreme sovereignty. In such a state, war could only exist in the form of civil war between member nations, and the supreme sovereignty would presumably be powerful enough to quickly squelch any outbreaks of such conflicts through force or economic coercion. Under this theory, people would eventually become "citizens of the world" instead of (or in addition) to merely citizens of whatever nation-state they happen to be born within.

Second, the "democratic peace" thesis. This thesis has a strong empirical foundation based on the fact that extensive research has shown that democratic countries have never warred with each other. However, democratic countries do have a statistical propensity to launch wars with non-democratic countries. Thus, if democracy is spread to more and more countries around the world, the likelihood of those countries warring with each other would drop accordingly. Various explanations are summarized in the article for why democratic countries, so far at least, refuse to engage in war with other democratic countries.

The article strongly favors the second approach, and argues that the United States should aggressively promote democracy overseas to help guarantee its national security. Delahunty and Yoo reject the "world federalism" approach both out of concerns for nation-state sovereignty and an argument that the United Nations will never become a global guardian of democracy and human rights, since it allows non-democratic member states to influence policy (even on the Security Council). Other supra-national organizations, such as the International Court of Justice and the European Union, however, are not analyzed, nor do the authors address the fact that recent U.S. attempts at spreading democracy overseas (Afghanistan, Iraq) have certainly not been unqualified successes. John Yoo, of course, is the infamous supporter of torture during the Bush administration, and from this article and other sources, seems rather skeptical of international organizations.

As I mentioned, the article addresses an interesting issue. However, I'm not sure at this early stage if policy-makers necessarily have to choose between the "world federalism" and the "democratic peace" theses. Nation-states can continue to support and strengthen international organizations while simultaneously spreading democracy through diplomatic, economic, and (occasionally) military means.

The Random Law Review uses a combination of random.org and HeinOnline to select a random law review article published in the past few years for discussion.