Faculty Scholarship Digest

December 2009

On a regular basis, Dean Michaels prepares a memorandum summarizing recent scholarship published by members of the Moritz faculty. The College boasts 50+ faculty members with national and international reputations. The range of influential and innovative legal scholarly works produced by our distinguished faculty reflects a variety of perspectives, interests, and areas of expertise.


Some Very Modest Reflections on Excusing Criminal Wrongdoers, 42 TEX. TECH L. REV. 247 (2009).

“Excuse” in the Criminal Law refers to doctrines under which we choose not to condemn or punish someone (because of her excuse), even though she has done something otherwise worthy of such condemnation or punishment. Insanity is a prototype excuse. Joshua has written prominently and done substantial theorizing in this area of criminal law, and in this symposium piece offers reflective insights concerning the evolution of some of the major controversies surrounding excuse.

First among these is whether the law should bother distinguishing defenses of excuse from defenses of justification (in which society, given the choice, would want the person to do the “something” normally worthy of punishment — typical self-defense is an example of a justification defense). Joshua remains with the clear majority of scholars who believe the distinction useful, and in this piece offers some suggestions regarding how legislators can put it to work in penal codes and the benefits of their doing so.

On the question whether the law of excuse is too broad or too narrow, Joshua expresses a shift in perspective from the former camp to the latter; while he does not advocate new excuses (e.g., brainwashing), he believes certain existing ones should be interpreted more broadly and that “partial excuses” should be allowed more frequently, particularly in light of the sentencing discretion that judges have lost over the past twenty years. Joshua traces these views to his conclusion that excusing certain wrongdoers is not a matter of compassion, but instead is compelled by justice. In a final section, the article examines the always controversial insanity defense.

After reviewing the evidence that the debate on the insanity defense, while interesting, is often “much ado about very little,” the article suggests following a test proposed by Judge Bazelon that would essentially ask juries to decide simply whether mental impairment was such that the defendant “cannot justly be held responsible for his act.”

Paul Rose, Sovereign Wealth Fund Investment in the Shadow of Regulation and Politics, 40 G’TOWN J. INT’L L. 1207 (2009).

In this article, part of a symposium arising from a conference regarding sovereign wealth funds, Paul continues his exploration of this emerging subject. Sovereign wealth funds (“SWF’s”) are investment funds owned by a government which invest in foreign assets to achieve financial objectives. While SWF’s have existed since the 1950's, “[i]ntense national security and political discussions have surrounded . . . [SWF] transaction in the past two years.”

After setting out the background of the SWF controversy and the substantial regulatory framework governing SWF transactions in the United States, Paul compares the U.S. government’s (the “recipient country’s”) interest and concerns (as expressed through that regulatory process) with the interests of the SWF “target firms” — the U.S. entities in which the SWF’s seek to invest. Paul carefully identifies where these interest converge, (e.g., hoping for economics-driven investment rather than politically driven investment from the SWF) and where they do not (e.g., target firms are likely much more interested than the recipient country in reducing the firm’s cost of capital).

The article examines how SWF regulation can interact with these preferences, for example, by forcing an SWF to be a passive investor. Paul concludes that “[t]arget firms are sensitive to the transactions costs [imposed by regulation and public sentiment] associated with SWF investment, and will structure transactions in a way that matches up with recipient country ideals in order to avoid higher transaction costs.” They will also pursue a policy of disclosure to reduce transaction costs by reducing public concern and preparing the market for future transactions.

After reviewing some specific SWF transactions, Paul finds “there is no evidence to suggest that SWF’s face higher transaction costs than other foreign investors as a result of [the special SWF regulation.]” Although there has been a recent marked decline in SWF investment in the U.S., the article concludes that “the current economic difficulties and internal sponsor country politics may have more to do with this shift than U.S. politics and regulation.”