Blog Excerpts

   September 26 2008: Lawrence B. Solum

Call for Papers: Junior Law & Humanities at Georgetown

Georgetown University Law Center, Columbia Law School, University of Southern California Center for Law, History & Culture, and UCLA School of Law invite submissions for the seventh meeting of the Law & Humanities Junior Scholar Workshop to be held at Georgetown University Law Center in Washington, D.C. on June 7 & 8, 2009.

PAPER COMPETITION:

The paper competition is open to untenured professors, advanced graduate students and post-doctoral scholars in law and the humanities; in addition to drawing from numerous humanistic fields, and welcomes critical, qualitative work in the social sciences. Between five and ten papers will be chosen, based on anonymous evaluation by an interdisciplinary selection committee, for presentation at the June Workshop. At the Workshop, two senior scholars will comment on each paper. Commentators and other Workshop participants will be asked to focus specifically on the strengths and weaknesses of the selected scholarly projects, with respect to subject and methodology. Moreover, the selected papers will then serve as the basis for a larger conversation among all the participants about the evolving standards by which we judge excellence and creativity in interdisciplinary scholarship, as well as about the nature of interdisciplinarity itself.

Papers should be works-in-progress between 10,000 and 15,000 words in length (including footnotes/endnotes), and must include an abstract of no more than 200 words. A dissertation chapter may be submitted but we strongly suggest that it be edited so that it stands alone as a piece of work with its own integrity. A paper that has been submitted for publication is eligible so long as it will not be in galley proofs or in print at the time of the Workshop. The selected papers will appear in a special issue of the Legal Scholarship Network; there is no other publication commitment. The Workshop will pay the travel expenses of authors whose papers are selected for presentation.

Submissions (in either Word or Wordperfect, no pdf files) will be accepted until January 9, 2009, and should be sent by e-mail to:

Center for the Study of Law and Culture
culture@law.columbia.edu

Columbia Law School
435 W. 116th Street
New York, N.Y. 10027

Please be sure to include your contact information. For more information: Tanisha Madrid, 212.854.0692 or culture@law.columbia.edu. The full text of the Call for Papers is available at:
http://www.law.columbia.edu/center_program/law_culture/lh_workshop.

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Lawrence B. Solum

Chen on Wickard v. Filburn

Jim Chen (University of Louisville - Louis D. Brandeis School of Law) has posted The Story of Wickard V. Filburn: Agriculture, Aggregation, and Commerce (Constitutional Law Stories, Michael C. Dorf ed., 2d ed., Foundation Press, 2008) on SSRN. Here is the abstract:

This article tells the story of Wickard v. Filburn, 317 U.S. 111 (1942). After providing a survey of American agriculture and its regulation between the World Wars, this article describes the constitutional landmark that began as a controversy over Roscoe Filburn's 1941 wheat crop. Wickard v. Filburn represents a pivotal moment in the Supreme Court's effort to define Congress's power "[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Greater turmoil over commerce clause jurisprudence has breathed new life into Wickard v. Filburn.

Highly recommended.

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Lawrence B. Solum

Henderson & Jagolinzer on Rule 10b5-1

M. Todd Henderson and Alan D. Jagolinzer (University of Chicago - Law School and Stanford Graduate School of Business) have posted The Uses and Abuses of Rule 10b5-1 on SSRN. Here is the abstract:

Firm insiders have used Rule 10b5-1, which allows them to pre-commit to trades when they don't possess insider information so they can trade at times when they do, to sell tens of billions of dollars of stock since the SEC promulgated the Rule in 2000. The SEC intended the Rule to permit insiders the opportunity for uninformed diversification trades, but we present evidence that the Rule (as written and as implemented) has several flaws that give insiders increased strategic trading opportunities compared with the pre-Rule world. We present empirical evidence suggesting that insiders using plans outperform insiders not using plans.

The Rule does not require mandatory disclosure of trading plans, so we exploit this as an opportunity to examine the interaction between disclosure choice and trading outcomes. We present evidence showing that disclosure is increasing in firm litigation risk and insider profit-making potential, and that, counter-intuitively, insiders making the most detailed disclosures outperform the market the most. In other words, transparency is not acting as a disinfectant but a false signal of cleanliness. This ability to hide in plain sight is a downside of disclosure that is unappreciated by the existing literature. We also show how the Rule embeds a costless put option for insiders to profit from future bad news, even if very unlikely, and we discuss how this option may or may not be efficient for firms and shareholders.

Finally, we address the public policy implications of the findings that some insiders are using the Rule strategically to increase their profit-making opportunities. We consider various reforms - mandatory disclosure, limiting termination options, etc. - and conclude that the SEC should not act since various market players (D&O insurance carriers, boards, institutional investors, and so on) have the right incentives to reduce strategic abuse of the Rule while maintaining its benign use. We also offer an alternative regulation that would achieve the SEC's stated goal more simply, and discuss the implications of the empirical findings for the general debate about insider trading regulation.

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Lawrence B. Solum

Reich on Direct Democracy

Johannes Reich (University of Basel Faculty of Law) has posted An Interactional Model of Direct Democracy - Lessons from the Swiss Experience on SSRN.  Here is the abstract:

Direct democratic decision-making has often been associated with populism, irrationality, and oppression of minorities as it requires allegedly "cognitive overstrained" citizens to decide on complex political issues often brought forward by special interest groups. The usage of popular initiatives in particular in the State of California seems to provide conclusive evidence for all of these shortcomings. Due to its constitutional arrangement and its diverse structure, Switzerland - which historically served as a blueprint for introducing instruments of direct democracy at the state-level during the progressive area in the United States - offers a unique case to assess these claims: More than half of the world's referenda held at the national level during the 20th century have taken place in Switzerland. At the same time, the Swiss Federal Constitution provides for limited constitutional review only, excluding Federal statutes and international law from judicial control. Based on the lessons from the Swiss experience, this paper argues not only for a more realistic approach to popular decision-making but for a more differentiated understanding of the general term "direct democracy" by pointing at the often neglected importance of the interface between institutions of direct and indirect democracy. At the same time, it cautions against simplistic demands for "popular constitutionalism". In sum, this paper champions what I call an interactional model of direct democracy.

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Lawrence B. Solum

Secunda on State Protection of Workers

Paul M. Secunda (Marquette University - Law School) has posted The Ironic Necessity for State Protection of Workers (University of Pennsylvania Law Review PENNUMBRA, Vol. 157, 2008) on SSRN.  Here is the abstract:

Although there is a palpable irony in turning to the States for assistance in protecting workers in the workplace, the federal government has proven unwilling and unable to protect the basic rights of workers. In such an environment, it is time to "employ" state legislatures to see if they can find the necessary balm for what ills the American worker in areas where federal labor law remains silent. To borrow the federalism conception of Justice Brandeis, by allowing states to operate as laboratories of experimentation today, workplace rights will not only flourish at the state level in the short-term, but also gain traction at the federal level for years to come.

This series of essays is part of a PENNumbra debate with Professor Jeffrey Hirsch on the need for state regulation of the workplace. I favor states playing a gap-filling role in workplace regulation where federal law is absent or silent and as part of their traditional role in legislating minimum condition laws to protect workers from inhumane working conditions. Professor Hirsch, on the other hand, seeks the complete eradication of all state workplace regulation and advocates an exclusive federal law regime. His hope is that such a new system will actually make workers better off because they will more easily be able to enforce their remaining rights in a less complex regulatory world.

The problem, however, is not one of complexity, but that federal agencies charged with carrying out the current law do not have the financial resources, the political will, or the administrative tools to implement, enforce, and adjudicate these laws. Eradicating state authority over the workplace will not only not solve the present-day enforcement issues that Professor Hirsch and I agree are very real, but will leave workers even more vulnerable to abuse as a result of fewer employment protections.

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Lawrence B. Solum

Yang & Percival on Global Environmental Law

Tseming Yang and Robert V. Percival (Vermont Law School and University of Maryland - School of Law) have posted The Emergence of Global Environmental Law on SSRN. Here is the abstract:

With the global growth of public concern about environmental issues over the last several decades, environmental legal norms have increasingly become internationalized. This development has been reflected both in the surge of international environmental agreements as well as the growth and increased sophistication of national environmental legal systems across the world. A number of trends, such as globalization and international development aid efforts, have shaped the global rise of environmental law. The result is the emergence of a shared set of legal principles and norms regarding the environment, such that one can arguably describe it as a common body of law. The emergence of what we call "global environmental law" already has and will likely continue to have profound implications for the implementation, practice, and development of environmental law worldwide.

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Lawrence B. Solum

Melish on New Governance & Poverty

Tara J. Melish (University of Notre Dame Law School) has posted Maximum Feasible Participation of the Poor: New Governance, New Accountability, and a 21st Century War on the Sources of Poverty on SSRN.  Here is the abstract:

In 1964, President Lyndon B. Johnson called for a Nationwide War on the Sources of Poverty to "strike away the barriers to full participation" in our society. Central to that war was an understanding that given poverty's multi-layered complexity, finding solutions to it required the "maximum feasible participation" of affected communities in identifying its varied sources and preparing long-range plans of local attack. Equally central, however, was an understanding that such decentralized problem-solving could not be fully effective without national-level orchestration and support. As such, LBJ set up at Office of Economic Opportunity, located in the Executive Office itself, to support - through encouragement, funding, and coordination - grassroots community efforts to eliminate locally-identified and locally-prioritized barriers to economic opportunity.

This Article argues that while the regulatory and political context of the 1960s provided inauspicious ground for LBJ's "maximum feasible participation" policy to effectively take root, four decades later two broad paradigm shifts have yielded a new, more fertile opportunity framework. The first involves the transition in U.S. regulatory law away from command-and-control structures favoring fixed rules and centralized enforcement, toward a "New Governance" model that privileges decentralization, flexibility, stakeholder participation, performance monitoring, and guided discretion. The second is the concurrent paradigm shift in U.S. social movement approaches to poverty - what I call "New Accountability" - which likewise promotes local voice and inclusive participation, decentralized performance monitoring around human rights indicators, and negotiated policymaking (rather than non-negotiable material demands and mass confrontation, the preferred tactics of 1960s activism). Supported by a renewed U.S. interest in collecting and reporting performance indicators for government programs, these two shifts converge to create a theory and policy-based environment in which it is both practically feasible and normatively coherent to reembrace the participatory orientation of the early "War on the Sources of Poverty" strategy. The challenge for U.S. social welfare rights law, I argue, is how to bring these two complimentary paradigms together in constructive synergy to mount a 21st century battle against poverty. A set of national subsidiarity-based institutions to support this effort is proposed in Part IV.

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   September 25 2008: Larry Ribstein

The bailout, Canada, and what to watch on television

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Lawrence B. Solum

Himma on the U.S. Constitution & the Rule of Recognition

Kenneth Einar Himma (Seattle Pacific University) has posted Understanding the Relationship between the U.S. Constitution and the Conventional Rule of Recognition (THE RULE OF RECOGNITION AND THE UNITED STATES CONSTITUTION, Matthew D. Adler, Kenneth Einar Himma, eds., Oxford University Press, 2009) on SSRN. Here is the abstract:

Legal theorists specializing in constitutional theory have tended to regard positivism and other conceptual theories as irrelevant; the idea is that a theory of the concept of law cannot tell us anything that helps to solve difficult normative and descriptive substantive issues of constitutional theory.

While there is something to this complaint, there is at least one substantive non-normative issue worth pursuing - and I attempt to pursue it here. In particular, I attempt to determine how the Constitution and rule of recognition are related by examining the practices of officials. This will not solve any interesting issues of constitutional theory, but it entails that judicial supremacy extends further than is commonly assumed, making the morally normative issues associated with this practice in a democratic system of governance even more difficult.

Highly recommended.

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Lawrence B. Solum

Pildes on Sunstein on Means & Ends

Richard H. Pildes (New York University School of Law) has posted Means and Ends in Politics and Law: An Essay in Honor of Cass R. Sunstein (Tulsa Law Review, Forthcoming) on SSRN.  Here is the abstract:

In both constitutional law and public policy, Cass Sunstein's work has entailed a search for the largest common denominator that justifies government action. In constitutional theory, Sunstein developed the concept of "incompletely theorized agreements" as a model for how judges ought to decide cases. In public policy analysis, Sunstein's work has reflected a similar commitment to maximizing consensus and reducing conflict. While Sunstein's conception of minimalist adjudication has been thoroughly explored, less attention has been paid to the underlying political vision that structures his view of the proper role of the state and the desirable forms of public policymaking.

In this tribute, I explore and challenge the structure of Sunstein's political vision. Two ways of seeing this vision exist. The first is the way in which Sunstein presents it: as a profound new alternative capable of transforming current politics and transcending political polarization and conflict. Sunstein himself calls his vision "a real Third Way," a post-partisan conception that provides a synthesis of Franklin Delano Roosevelt's New Deal liberalism and Ronald Reagan's new conservatism. The second way is almost diametrically the opposite. Perhaps this conception actually reveals how chastened and minimalist political aspirations are limited to being in our era.

Based in behavioral law and economics, the centerpieces of Sunstein's political vision are default rules and information disclosure. This is a vision focused on changing the means by which government acts. This focus, however, then raises the question: how much can or should politics focus primarily on the means of government action, rather than what ends government ought to pursue? Or, to the put the question in terms of Sunstein's own stated ambitions, can it really be the case that the major political critique of the New Deal that was effectively launched in the Reagan years was simply a critique about the means of public policy, as opposed to the proper role of the state and the ends for which government ought to act? Should we see Democrats and Republicans, liberals and conservatives, as so divisively polarized today merely because they disagree about what means government ought to use in pursuing policy objectives - objectives that, we are presumably to believe, all sides actually share? If this vision actually is the "real Third Way" in contemporary politics, it is worth asking what that tells us about the possibilities for democracy today.

Highly recommended.

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Lawrence B. Solum

Cotropia & Lemley on Copying in Patent Law

Christopher Anthony Cotropia and Mark A. Lemley (University of Richmond School of Law and Stanford Law School) have posted Copying in Patent Law on SSRN.  Here is the abstract:

Patent law is virtually alone in intellectual property (IP) in punishing independent development. To infringe a copyright or trade secret, defendants must copy the protected IP from the plaintiff, directly or indirectly. But patent infringement requires only that the defendant's product falls within the scope of the patent claims. Not only doesn't the defendant need to intend to infringe, but the defendant may be entirely unaware of the patent or the patentee and still face liability. 

Nonetheless, copying does play a role in some subsidiary patent doctrines. For example, the question of whether patent damages should be set in order to deter infringement depends critically on whether infringers are in fact aware they are infringing, or at least that they are using the plaintiff's technology. Copying - or at least intent to infringe - is also an element of claims for indirect infringement. The definition of "willful infringement" also turns on the question of culpability, at least in the popular understanding of that term. More significantly, the rhetoric of patent law (and of IP law more generally) often seems to presuppose that defendants in patent cases are in fact engaged in copying. Similarly, the outcome of public policy debates over patent reform may well turn on the perception of patent infringers as either bad actors or as innocent businesspeople who accidentally ran afoul of a patent. 

Unfortunately, no one seems to know whether patent infringement defendants are in fact unscrupulous copyists or independent developers. In this paper, we seek to answer that question. Because copying is not an element of any patent cause of action, courts do not normally make explicit findings as to whether defendants have copied. Instead, we turn to a variety of proxies to try to identify the subset of cases in which copying is alleged or proven. We look both at the allegations made in a random sample of complaints and at the treatment of copying in recent reported decisions. We find that a surprisingly small percentage of patent cases involve even allegations of copying, much less proof of copying. Copying in patent law seems to be the exception, not the rule.

Recommended.

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Lawrence B. Solum

Kobach on States & Illegal Immigration

Kris W. Kobach (University of Missouri at Kansas City - School of Law) has posted Reinforcing the Rule of Law: What States Can and Should Do to Reduce Illegal Immigration (Georgetown Immigration Law Review, Vol. 22, 2008) on SSRN.  Here is the abstract:

In the 2007 state legislative session, for the first time ever, legislators in all fifty states introduced bills dealing with illegal immigration. A whopping 1,562 illegal immigration bills were submitted, up from 570 in 2006. Of the bills submitted, 240 were enacted into law, up from 84 in 2006. The vast majority were designed to discourage illegal immigration in one way or another. It has often been said, but seldom demonstrated so clearly: every state is a border state now. It is undeniable that the urge to reduce illegal immigration has become a powerful force in state legislatures across the country. This article analyzes the fact that the single largest factor motivating state governments to enact legislation discouraging illegal immigration is the fiscal burden that it imposes upon the states. It then identifies and addresses eight areas in which states or cities can constitutionally act in the field of immigration. In conclusion, whenever a state has acted it has had an immediate effect on the level of illegal immigration in that state. This progression of state laws is a predictable and positive development in a system in which the federal government has been unable to effectively curtail the influx of illegal aliens for more than two decades.

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Lawrence B. Solum

Miller on Jones v. Alfred H. Mayer Co.

Darrell A. H. Miller (University of Cincinnati College of Law) has posted White Cartels, the Civil Rights Act of 1866, and the History of Jones v. Alfred H. Mayer Co. (Fordham Law Review Forthcoming) on SSRN. Here is the abstract:

To commemorate the fortieth anniversary of Jones, this piece does three things. First, it explains how Congress' exercise of Thirteenth Amendment power to govern private economic relationships during Reconstruction gave important, but unacknowledged, intellectual credence to the antitrust movements of the late nineteenth and early twentieth centuries. Second, it explores the human story behind Jones, tracking the narrative of the Joneses, their counsel, the judges, and their lives after the decision. Finally, it explains how Jones' recognition of the interrelationship between public and private coercion can help scholars, lawmakers, and jurists define the contours of Thirteenth Amendment power.

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Lawrence B. Solum

Iossa & Julien on the Value of Legal Services Quality Information

Elisabetta Iossa and Bruno Jullien (Brunel University and University of Toulouse 1 - Groupe de Recherche en Economie Mathématique et Quantitative (GREMAQ) ) have posted The Market for Lawyers: The Value of Information on the Quality of Legal Services on SSRN.  Here is the abstract:

We study the value of information on the quality of legal services by analyzing the incentives of litigants to hire high-quality lawyers and the effect of legal representation on the decision-making behaviour of adjudicators.

In a setting where adjudicators have reputational concerns and where the quality of lawyers is reflected in their knowledge of legal principles, we show that better information over the quality of legal representation generates a trade-off. It allows for a better match between the value of a legal dispute and the quality of the legal representation. But it induces a bias in the decisions of adjudicators in favour of the litigant with the highest-quality lawyer. For a given distribution of the quality of lawyers, the social value of public information on the quality of lawyers may then be negative.

We discuss the implications of these effects on the desirability of quality certification system (such as the Queen's Counselor system) in the market for the legal professions. Certification also has the effect of increasing the incentives of lawyers to invest in quality-enhancing training. We show that free certification leads to excessive supply of certified lawyers. We also show that the main insights are robust to the accounting for proof-taking activities by lawyers.

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   September 24 2008: Christine Hurt

Risk Stories, Fraud Stories & the Making the Problem Sound as Big as the Cure

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Thomas Ulen

Regional Personalities in the U.S.

This article in yesterday's Wall Street Journal reports on research that suggests that there are distinct personality types in the different regions of the United States. I do not know the underlying methods or data that were used to reach...

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Thomas Ulen

A Manipulated Prediction Market?

I am a fan of prediction markets -- unless, of course, they are being manipulated so as not to reflect the true aggregated beliefs of traders. So, this column at fivethirtyeight.com (an excellent source of statistical information about the election)...

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Lawrence B. Solum

Oppenheimer on Plant Patents

Max Stul Oppenheimer (University of Baltimore - School of Law) has posted The 'Reasonable Plant' Test: When Progress Outruns the Constitution (Minnesota Journal of Law, Science & Technology, 2008) on SSRN. Here is the abstract:

As the world searches for new sources of energy, attention has focused on renewable sources, such as plants. One approach to motivating investments in new technology is to provide limited term monopolies through the patent statute. With the passage of the Townsend-Purnell Plant Patent Act (PPA) in 1930, the United States became the first country in the world to provide a form of patent protection for plants. At the time, Francis Crick was a student and James Watson had just celebrated his second birthday -- their discovery of the helical structure of DNA was more than twenty-two years in the future. Convinced that advances in agriculture deserved patent protection, Congress attempted to accommodate the core concepts of patent law to the technology of plant propagation that existed at the time, in essence defining a plant by its physical rather than genetic characteristics. This required bending traditional patent rules.

Developments in biotechnology since 1930 have been dramatic. Scientific advances have not only undercut the need for the special rules created by the PPA but have also created a trap, which may deprive modern inventors of protection for the development of novel plants. Moreover, while new applicants can avoid it, the owners of thousands of issued plant patents have fallen into the trap and cannot remedy the error unless Congress provides relief.

This article describes the enduring core principles of utility patent law and identifies those that posed special problems for the agriculture industry in 1930 and led to the adoption of a sui generis plant patent law. It then demonstrates that, although the statute which controls plant patents has not changed significantly since its adoption in 1930, changes in biotechnology have in effect rewritten the requirements for patentability in a way which renders most recently granted plant patents invalid. Finally, it demonstrates how future applicants can avoid the trap which has been created by advancing technology, and proposes changes in the statute which could save those patents already issued and, in the process, improve the examination of plant patent applications and provide stronger protection for the agriculture industry.

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Lawrence B. Solum

Henderson & Epstein on Going Private

M. Todd Henderson and Richard A. Epstein (University of Chicago - Law School and University of Chicago - Law School) have posted Introduction to 'The Going Private Phenomenon: Causes and Implications' on SSRN.  Here is the abstract:

This essay introduces the papers presented at a conference at the University of Chicago Law School in June 2008, entitled "The Going Private Phenomenon: Causes and Implications." The papers will be published in a forthcoming volume of the University of Chicago Law Review. This introduction puts the papers in the context of the recent private equity boom and ongoing crunch, and it offers some preliminary views on the current and future state of the private equity industry.

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Lawrence B. Solum

Tridimas & Gutierrez-Fons on EU Law & Economic Sanctions Against Terrorism

P. Takis Tridimas and Jose A. Gutierrez-Fons (Pennsylvania State University - Dickinson School of Law and University of London - Queen Mary) have posted EU Law, International Law and Economic Sanctions Against Terrorism: The Judiciary in Distress? (Fordham International Law Journal, Forthcoming) on SSRN).  Here is the abstract:

This article seeks to examine the relationship between European Union law, international law, and the protection of fundamental rights in the light of recent case law of the European Court of Justice (ECJ) and the Court of First Instance (CFI) relating to economic sanctions against individuals. On 3 September 2008, the ECJ delivered its long-awaited judgment in Kadi and Al Barakaat on appeal from the CFI. In its judgment under appeal, the CFI had held that the European Community (EC) is competent to adopt regulations imposing economic sanctions against private organisations in pursuance of UN Security Council (UNSC) Resolutions seeking to combat terrorism; that although the EC is not bound directly by the UN Charter, it is bound pursuant to the EC Treaty to respect international law and give effect to UNSC; and that the CFI has jurisdiction to examine the compatibility of EC regulations implementing UNSC resolutions with fundamental rights not as protected by the EC but as protected by jus cogens. On appeal, following the Opinion of Maduro AG, the ECJ rejected the CFI's approach. It held that UNSC resolutions are binding only in international law. It subjected the contested regulations to full review under EC human rights standards and found them in breach of the right to a hearing, the right to judicial protection and the right to property. Kadi and Al Barakaat is the most important judgment ever delivered by the ECJ on the relationship between EC and international law and one of its most important judgments on fundamental rights. It is imbued by constitutional confidence, commitment to the rule of law but also some scepticism towards international law. In the meantime, the CFI has delivered a number of other judgments on anti-terrorist sanctions assessing the limits of the "emergency constitution" at European level. The purpose of this paper is to examine the above case law and explore the dilemmas and tensions facing the EU judiciary in seeking to define and protect the EU's distinct constitutional space. It is divided as follows. It first looks at the judgment in Kadi. After a short presentation of the factual and legal background, it explores the question whether the EU has competence to adopt smart sanctions. It then examines whether the EU is bound by resolutions of the Security Council, whether the ECJ has jurisdiction to review Community measures implementing such resolutions and the applicable standard of judicial scrutiny. It analyses the contrasting views of the CFI, the Advocate General, and the ECJ taking account also of the case law of the European Court of Human Rights (ECtHR). Further, it explores the consequences of annulling the contested regulation. It then turns to discussing CFI case law in relation to sanctions lists drawn up not by the UN Security Council but by the EC. The paper concludes by welcoming the judgment of the ECJ. Whilst its reasoning on the issue of Community competence is questionable, once such competence is established, it is difficult to support the abrogation of Community standards for the protection of fundamental rights. Such standards should ensure procedural due process whilst recognising the importance of public security.

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Lawrence B. Solum

Liu & Halliday on Chinese Criminal Defense Lawyers

Sida Liu and Terence C. Halliday (American Bar Foundation) have posted Dancing Handcuffed in the Minefield: Survival Strategies of Defense Lawyers in China's Criminal Justice System on SSRN.  Here is the abstract:

The tremendous difficulties that Chinese criminal defense lawyers face in their dialy work have been well documented by researchers in China and abroad. However, few studies have examined the coping strategies and collective action of defense lawyers in relation to powerful state actors (i.e., the police, procuracy, and court) in the criminal justice system. Based on over 50 in-depth interviews in five major cities and extensive archival research, this paper discusses the twisted and precarious legal practice of Chinese criminal defense lawyers in relation to the state criminal justice system. On the one hand, lawyers challenge arbitrary state power by defending the rights of hte accused in the criminal procedure; on the other hand, they have to rely on the state and judicial agencies to get business and protect themselves from persecution. This partially dependent lawyer-state relationship highly constrains the professional autonomy and mobilizing capacity of Chinese lawyers and significantly weakens their structural position in the criminal justice system. Their ambiguous position in the state system on social control also renders problematic their capacity for protection of basic legal freedoms of citizens.

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Lawrence B. Solum

Smith & Valsan on 3464920 Canada Inc. v. Strother

Lionel Smith and Remus D. Valsan (Quebec Research Centre of Private and Comparative Law and McGill University - Faculty of Law) have posted The Loyalty of Lawyers: A Comment on 3464920 Canada Inc. v. Strother (Canadian Bar Review, Vol. 87, p. 247, 2008) on SSRN. Here is the abstract:

he Strother decision is of major interest for legal practitioners, since it clarifies the circumstances in which a law firm could be found to have acted adversely to the interests of an existing client. From an academic perspective, however, the decision signals an unsettling lack of consensus among the judges on fairly basic principles of fiduciary law. This article aims to clarify some of the incertitudes pertaining to the interplay between contractual obligations and fiduciary relationships and to the content of the lawyer's duty of loyalty.

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Lawrence B. Solum

Baines on Feminist Judges

Beverley Baines (Queen's University - Faculty of Law) has posted But Was She a Feminist Judge? (ONE WOMAN'S DIFFERENCE: THE CONTRIBUTIONS OF JUSTICE BERTHA WILSON, Kimberley Brooks, ed., UBC Press, Forthcoming) on SSRN.  Here is the abstract:

During her time on the bench, Justice Wilson refused to identify as a feminist. Her silence did not deter feminists from applauding many of her decisions. Nor did it preclude them from critiquing three opinions: Pelech, Morgentaler, and Hess. In this chapter, first I identify the features of feminist legal theory that inform these critiques. Next I explore some of the recent challenges that women's studies and gender theorists have posed for this theory. I conclude that it makes a significant difference to analyze Justice Wilson's three contested opinions from the perspective of gender theory.

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Larry Ribstein

The future of banks: private equity?

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   September 23 2008: Lawrence B. Solum

Kolber on Comparative Punishment

Adam J. Kolber (University of San Diego School of Law) has posted The Comparative Nature of Punishment on SSRN.  Here is the abstract:

Suppose we punished people by forced poverty. Instead of a traditional dollar fine, we would limit offenders' personal possessions to the bare essentials. For a one-year period of forced poverty, a billionaire would lose access to his billions, while a person with just the bare essentials would lose nothing. Clearly, a year of forced poverty has a disproportionally severe impact on the billionaire.

Now suppose instead that the billionaire and the poor person are sentenced to prison for a year. In prison, we will, in fact, punish them with forced poverty by limiting their personal possessions to just the bare essentials. Yet many people treat such sentences as equal because they have the same duration. How can forced poverty be an unfair stand-alone punishment but a fair one when combined with imprisonment?

The answer is that the punishment is unfair in both scenarios. We mistakenly evaluate the severity of prison by measuring only the condition that prison imposes on offenders, without looking at offenders' baseline conditions. This absolutist approach to punishment severity ignores half of what matters about punishment, because it fails to recognize that punishment is fundamentally comparative in nature. In order to judge punishment severity properly, I argue, we must compare an offender's unpunished, baseline condition to his worse, punished condition. The billionaire and the poor person differ in their baseline wealth, but as I explain, wealth is just one of many ways in which offenders' baselines differ. Proper recognition of the comparative nature of punishment requires us to either dramatically change our sentencing practices to take baselines into account or give up, in large measure, on the goal of proportional punishment.

And from the paper:

[I]magine that a homeless man is viciously beaten by Stuart and now lies bleeding on the ground. Unaware of precisely what happened to the homeless man, Tommy comes by and plucks three hairs from the head of the homeless man, causing him very modest additional pain. As a result of their actions, both Stuart and Tommy have causally contributed to the homeless man’s harmed condition. On an absolute view of harm, however, we cannot account for the much greater harm caused by Stuart than caused by Tommy. This is precisely how poor an absolute conception of harm is at assessing harm severity.

Is there some way we could account for the difference in what Stuart and Tommy did to the homeless man in absolute terms? Can we say that Stuart was a much more substantial cause of the homeless man’s final, absolute condition than Tommy was? No, we cannot. Doing so only hides the underlying comparative analysis. The difference in their causal contribution depends on the change in the homeless man’s condition caused by Stuart relative to the change in his condition caused by Tommy. The comparative conception of harm and punishment severity is inescapable.

Interesting and recommended.

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Larry Ribstein

Opting out of the short-sale list

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Dave Johnson for the College of Law

University of Illinois College of Law Faculty Blogs

Legal Theory Blog - Professor Lawrence Solum; Ideoblog - Professor Larry Ribstein; Conglomerate - Professors Christine Hurt and Victor Fleischer; Credit Slips - Professor Robert Lawless; Sexual Orientation and the Law Blog - Professor Sara Benson; Law & Econ Prof Blog - Professor Thomas Ulen

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Dave Johnson for the College of Law

Admiral James Loy to present Vacketta-DLA Piper Lecture on October 9

Admiral James M. Loy, the former Deputy Secretary for the Department of Homeland Security, Administrator for the Transportation Security Administration, and Commandant of the U.S. Coast Guard will present the annual Vacketta-DLA Piper Lecture on the Role of Government and the Law on Thursday, October 9 at 3 p.m. in the Max L. Rowe Auditorium at the University of Illinois College of Law. The lecture is free and open to the public and a reception will be held immediately following the lecture in the Peer and Sarah Pedersen Pavilion.

Admiral Loy currently serves as Senior Counselor at The Cohen Group. In 2005, Admiral James Loy completed a 45-year career in public service, retiring as Deputy Secretary of Homeland Security. In this capacity, he was involved in all aspects of consolidating 22 separate agencies into one unified Cabinet department as well as managing the day-to-day activities of the agency.

Prior to the establishment of the Department of Homeland Security in 2002, Admiral Loy served in the Department of Transportation as Deputy Under Secretary for Security and Chief Operating Officer of the Transportation Security Administration (TSA), and later as Under Secretary for Security. In these roles, he served as the first administrator of the newly created TSA, which is responsible for protecting the Nation's transportation systems to ensure freedom of movement for people and commerce.

Admiral Loy retired from the U.S. Coast Guard in 2002, having served as its Commandant since May 1998. As head of the 90,000 person organization, he restored readiness through workforce development and modernized the Coast Guard's fleet of ships and aircraft.

Prior to his service as Commandant, Admiral Loy served as the Coast Guard Chief of Staff from 1996 to 1998, during which time he redesigned the headquarters management structure and overhauled the Coast Guard planning and budgeting process to focus more sharply on performance and results. From 1994 to 1996, he was Commander of the Coast Guard's Atlantic Area, supervising U.S. forces during the mass Haitian and Cuban migrations of 1994, and leading Coast Guard forces participating in Operation Restore Democracy.

A career seagoing officer, Admiral Loy has served tours aboard six Coast Guard cutters, including command of a patrol boat in combat during the Vietnam War and command of major cutters in both the Atlantic and Pacific Oceans.

His military commendations and civilian honors are numerous, including the Department of Transportation Distinguished Service Medal; four Coast Guard Distinguished Service Medals; the Defense Superior Service Medal; the Bronze Star with Combat "V"; the Combat Action Ribbon; the Naval Order of the United States' Distinguished Sea Service Award, the Seaman's Church Institute Silver Bell Award, the Navy League prestigious Admiral Arleigh Burke Leadership Award, the Intrepid Foundation Lifetime Achievement Award, and many other distinctions. Admiral Loy graduated from the U.S. Coast Guard Academy in 1964 and holds Master's degrees from Wesleyan University and the University of Rhode Island. Admiral Loy is a member of the Board of Directors of Lockheed Martin, L-1 Identity Solutions, Inc and RIVADA Networks, Inc.

Admiral Loy is a native of Altoona, Pennsylvania.

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Dave Johnson for the College of Law

Welcome to the Illinois College of Law Blog

My name is Dave Johnson, the Assistant Dean for Communications at the University of Illinois College of Law. This blog site has been created to keep everyone up-to-date on daily news and information from the University of Illinois College of Law. Every day, you're liable to see information on this blog site that includes:

1. Illinois faculty members quoted in local, regional, and national media outlets

2. Major events coming up at the College, including endowed lectures and academic conferences

3. Alumni news and accomplishments

4. Updates on Student Organizations, including events, fund-raisers, and news

5. Illinois faculty scholarly updates and links to publications

This blog site is about the Illinois College of Law and represents our efforts to bring the latest information quickly and efficiently to everyone. I encourage your feedback!

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Lawrence B. Solum

Pritchard & Thompson on the New Deal Justices & Securities Law

Adam C. Pritchard and Robert B. Thompson (University of Michigan Law School and Vanderbilt University - School of Law) have posted Securities Law and the New Deal Justices (Virginia Law Review, Vol. 95, 2009) on SSRN.  Here is the abstract:

Taming the power of Wall Street was a principal campaign theme for Franklin Delano Roosevelt in the 1932 election. Roosevelt's election bore fruit in the Securities Act of 1933, which regulated the public offering of securities, the Securities Exchange Act of 1934, which regulated stock markets and the securities traded in those markets, and the Public Utility Holding Company Act of 1935 (PUHCA), which legislated a wholesale reorganization of the utility industry. The reform effort was spearheaded by the newly created Securities and Exchange Commission, part of the new wave of experts brought to Washington to rein in business. PUHCA also marked the federal government's first significant incursion into corporate governance, with a corresponding reduction in the traditional role of investment bankers. The SEC's ascendance over the investment bankers was reinforced during FDR's second term by the Chandler Act of 1938, which provided the agency with a broad role in the bankruptcy reorganization of troubled companies.

Enacting those statutes was only the beginning, as the scope and effectiveness of the SEC's regulatory efforts depended critically on navigating these new statutes past an initially hostile Supreme Court. After substantial delay in the lower courts, the securities statutes eventually got a friendly hearing in the Supreme Court, where a number of Justices came to the Court after serving as the "Founding Fathers" of the federal securities laws. Roosevelt's Supreme Court nominees were involved in drafting the new legislation, securing its passage in Congress and implementing a litigation strategy that successfully stalled final determination of the constitutionality of the securities laws until New Deal appointed justices were in place. Felix Frankfurter played an important role in shaping the Securities Act and PUHCA, and was a key advisor on litigation strategy to the Roosevelt administration. Hugo Black led the legislative battle to enact PUHCA against the utility companies. Stanley Reed and Robert Jackson were key courtroom advocates arguing PUHCA's constitutionality. William O. Douglas headed the study of Protective Committees that led to the Chandler Act and was Chairman of the SEC.

In this article, we explore the role of the New Deal justices in enacting the securities laws, litigating the challenges brought against them and then interpreting these laws in securities cases before the Supreme Court. We show the important role that these New Deal justices played in ensuring a broad scope for the federal securities laws through generous interpretation. Once constitutional questions had faded, securities cases proved to be a critical testing ground for newly emerging theories of administrative law. We demonstrate the split over the importance of judicial review versus deference to the rule of experts that emerged among these Roosevelt appointees. Finally, we explore the relative lack of influence of Douglas and Frankfurter in these cases, despite their familiarity and experience with the securities laws.

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Lawrence B. Solum

Aviram on the Evolution of Private Legal Systems

Amitai Aviram (University of Illinois College of Law) has posted Forces Shaping the Evolution of Private Legal Systems (LAW, ECONOMICS AND EVOLUTIONARY THEORY, Peer Zumbansen, Gralf-Peter Calliess, eds., 2009) on SSRN. Here is the abstract:

Private legal systems ("PLSs") are to the universe of law as dark matter is to the physical universe: while PLSs are invisible to the casual study of law, they are observable by their impact on individuals' behavior and by their interaction with the public legal system. PLSs expand to fill voids where the public legal system cannot or does not wish to enforce norms, and contract when the public legal system moves to displace them. But the public legal system is not the only force shaping the course of PLSs' development.

This chapter identifies two other forces that significantly affect the evolution of PLSs. The first - incumbent's enforcement advantage - impacts the identity of the PLS that will enforce the norm. The second - bias arbitrage - impacts the type of norms the PLS would choose to enforce. These forces challenge both parts of an idealized notion that PLSs form spontaneously (without reliance on pre-existing institutions) to enforce norms that maximize their members' welfare.

Due to the influence of incumbent's enforcement advantage, PLSs tend to begin their life enforcing a core norm that has very low enforcement costs (typically, providing social or spiritual services). Once this core has developed, PLSs may then choose expansion norms that can be more expensive to enforce, and that benefit from the PLS's ability to compel compliance with the new norm by denying a member the benefits of its enforcement of the core norm and any expansion norms already successfully enforced. The expansion norms that are chosen will not necessarily be those that maximize the social welfare of PLS members. Rather, the PLS's will often attempt cause its member to perceive it as valuable by conducting bias arbitrage through enforcing norms that address risks that its members significantly over-estimate.

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Lawrence B. Solum

Berger on Racism and Native Americans

Bethany Berger (University of Connecticut School of Law) has posted Red: Racism and American Indians (UCLA Law Review, Vol. 56, No. 3, 2009) on SSRN.  Here is the abstract:

How does racism work in American Indian law and policy? Scholarship on the subject has too often assumed that racism works for Indians in the same way that it does for African Americans, and has therefore either emphasized the presence of hallmarks of White-Black racism, such as uses of blood quantum, as evidence of racism, or has emphasized the lack of such hallmarks, such as prohibitions on interracial marriage, to argue that racism is not a significant factor. This Article surveys the different eras of Indian-White interaction to argue that racism has been important in those interactions, but has worked in a distinctive way. North Americans were not primarily concerned with using Indian people as a source of labor, and therefore did not have to theorize Indians as inferior individuals to control that labor. Rather, the primary concern was to obtain tribal resources and use tribes as a flattering foil for American governments. Therefore it was necessary to theorize tribal societies as fatally and racially inferior, while emphasizing the ability of Indian individuals to leave their societies and join non-Indian ones. This theory addresses the odd paradox that the most unquestionably racist eras in Indian-White interaction emphasized and encouraged assimilation of Indian individuals. It contributes to the ongoing effort to understand the varying manifestations of racism in a multi-racial America. Most important, it provides a new perspective on efforts to curtail tribal sovereignty in the name of racial equality, revealing their connection to historic efforts to maintain the inferiority of Indian tribes by treating them as racial groups rather than political entities with governmental rights.

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Lawrence B. Solum

Gostin on Public Health Law

Lawrence O. Gostin (Georgetown University Law Center - O'Neill Institute for National and Global Health Law) has posted A Theory and Definition of Public Health Law (Lawrence O. Gostin, PUBLIC HEALTH LAW POWER, DUTY, RESTRAINT, Revised & Expanded Second Edition, University of California Press/ Milbank Memorial Fund, 2008) on SSRN. Here is the abstract:

The literature, both academic and judicial, on the intersection of law and health is pervasive. The subject of law and health is widely taught, practiced, and analyzed. The fields that characterize these branches of study are called health law, health care law, law and medicine, forensic medicine, and public health law. Do these names imply different disciplines, each with a coherent theory, structure, and method that sets it apart? Notably absent from the extant literature is a theory of the discipline of public health law, an exploration of its doctrinal boundaries, and an assessment of its analytical methodology.

Public health law can be defined, its boundaries circumscribed, and its analytical methods detailed in ways that distinguish it as a discrete discipline-just as the disciplines of medicine and public health can be demarcated. With this book I hope to provide a fuller understanding of the varied roles of law in advancing the public's health. The core idea I propose is that law can be an essential tool for creating conditions to enable people to lead healthier and safer lives.

In this opening chapter, I offer a theory and definition of public health law, an examination of its core values, an assessment of state statutes in establishing the legal foundations of public health
agencies, a categorization of the various models through which law acts as a tool to advance the public's health, and, finally, a description of the current debate over the legitimate scope of public health. These are the questions I will pursue: What is public health law and what are its
doctrinal boundaries? Why should population health be a salient public value? What are the legal foundations of governmental public health? How can law be effective in reducing illness and premature death? And what are the political conflicts faced by public health in the early
twenty-first century?

My definition of public health law follows, and the remainder of this chapter offers a justification as well as an expansion of the ideas presented:

Public health law is the study of the legal powers and duties of the state, in collaboration with its partners (e.g., health care, business, the community, the media, and academe), to assure the conditions for people to be healthy (to identify, prevent, and ameliorate risks to health in the population) and the limitations on the power of the state to constrain the autonomy, privacy, liberty, proprietary, or other legally protected interests of individuals for the common good. The prime objective of public health law is to pursue the highest possible level of physical and mental health in the population, consistent with the values of social justice.

Several themes emerge from this definition: (1) government power and duty, (2) coercion and limits on state power, (3) government's partners in the "public health system," (4) the population focus, (5) communities and civic participation, (6) the prevention orientation, and (7) social justice.

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Lawrence B. Solum

Sitaraman on Counterinsurgency & Constitutional Design

Ganesh Sitaraman (Harvard Law School) has posted Counterinsurgency and Constitutional Design (Harvard Law Review, Vol. 121, No. 6, p. 1622, 2008) on SSRN. Here is the abstract:

Few think of counterinsurgency as linked to constitutional design. Counterinsurgency is bottom-up; constitutional design is top-down. Counterinsurgency is military; constitutional design is political-legal. Counterinsurgency is temporary, transitional, and tactical, designed to stabilize society; constitutional systems come later and are permanent, constant, and normal. But the conflicts in Iraq and Afghanistan demonstrate the fallacy of these perceptions. Counterinsurgency and constitutional design took place simultaneously, they required high-level political agreement and ground-level acceptance, and they involved politics, law, and security. Iraq and Afghanistan demonstrate that these two enterprises are not different and disconnected, but rather intricately interconnected and complementary.

This Note explores this interconnection, showing how constitutional design and counterinsurgency can influence each other. Part II argues that counterinsurgency is a form of constitutional design. Counterinsurgents have considerable influence over who participates in the constitution-making process. In addition, because counterinsurgency operations can significantly change ground-level power dynamics, and thus the probability of ratification, counterinsurgency may indirectly constrain or expand constitutional design possibilities. Finally, counterinsurgents seek to build a legitimate, stable order within society and to enable public power - elements of what scholars consider the informal constitution of a state. Part III argues that constitutional design can be a form of counterinsurgency. If a constitution is designed with the goals, lessons, and elements of counterinsurgency in mind, the constitution may actually facilitate and accelerate the realization of the counterinsurgent's goals. Part III first provides reasons for including counterinsurgency-inspired design structures in constitutions and then presents examples of such structures. Part IV concludes.

This is a student note.

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   September 22 2008: Christine Hurt

Random Thoughts on the Financial State of Affairs

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Robert Lawless

Before I Hand Over a $700 Billion Check, How About Some Balances?

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Lawrence B. Solum

Driesen on Alternatives to Regulation

David M. Driesen (Syracuse University - College of Law) has posted Alternatives to Regulation?: Market Mechanisms and the Environment (OXFORD HANDBOOK ON REGULATION, Martin Cave, Rob Baldwin, and Martin Lodge eds., Oxford University Press 2009) on SSRN.  Here is the abstract:

This book chapter presents a discussion of instrument choice in institutional context, with an emphasis on the Kyoto Protocol as an example of environmental benefit trading under a multilevel governance arrangement. Typically, economic models and qualitative discussion of instrument choice implicitly assume that a single regulator selects, designs, and enforces regulatory instruments. Increasingly, however, multiple polities implement regulatory instruments together. The Kyoto Protocol, for example, includes international, regional, national, sub-national, and private roles in the design and enforcement of emissions trading. This chapter emphasizes that design and enforcement are critical, as market mechanisms do not "automatically" produce environmental progress; rather they produce progress if properly designed and enforced and not otherwise.

This chapter recounts the history of market mechanisms' growth, emphasizing the contrast between the United States' success with the acid rain program and its earlier failure with bubble programs. It also discusses the use of market mechanisms around the world, with some emphasis on the intersection between ideology and instrument choice. Finally, it describes the roles of multiple institutional actors in implementing environmental benefit trading under the Kyoto Protocol and analyzes some of the challenges that arise when an instrument is implemented in a complex multi-jurisdictional setting.

Market-based alternatives to regulation sparked my initial interest in law and economics around 1970--when as a high-school sophmore, I read J. H. Dale's Pollution, Property, and Prices and was gripped by the conviction that effluent taxes and trading schmes were superior to emission control regulations.  (I will be forever grateful to Jim Krier, who was then at UCLA, for his encouragement.)  My own interests have turned elsewhere, but I continue follow this literature with interest.

Recommended!

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Larry Ribstein

From Wall Street to Connecticut

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Lawrence B. Solum

Kiggins on Judicial Confirmations

Spencer D. Kiggins (College of William and Mary - Marshall-Wythe School of Law) has posted The Elusive Pavilion of Peace in the Judicial Confirmation Process: A Discursive Analysis of How the Confirmation Process Broke Down and Where it Could Be Fixed on SSRN.  Here is the abstract:

The George W. Bush presidency saw an increase in the partisanship over judicial nominations with the unprecedented use of the filibuster to block the confirmation of majority supported nominations to the federal judiciary. Republicans and Democrats accuse the other party of breaking the nominations process. But is the process itself really broken? Lost in the heated rhetoric over the "broken" appointments process is a discussion of how the nominations process reached its current level of heightened partisanship. Using discourse theory to analyze how the nominations process reached its current state uncovers the solution to the nominations process: the Senate, not the process, needs to reform to allow the process to function as it was designed to function under the Constitution.

And from this very interesting student note:

Perhaps the crisis of identity in the Senate concerning its role and the amount of power it has as an institution compared to the President in the appointments power finds much of its genesis in the vague language describing the Senate’s role in the appointments process.185 David Law notes that the “Constitution’s allocation of nominating authority to the President on the one hand, and of the undefined powers of ‘advice and consent’ to the Senate on the other, is a formula that has yielded its share of political conflict and judicial vacancies.”186 Vague language that attempts to delineate the power assigned to an entity is a prime condition for an undeveloped identity that leads to actions seeking to develop that identity.187 In other words, the vagueness of the phrase “advice and consent” and the lack of a precise definition of how much power those three words allocate to the Senate in the appointments power create conditions very favorable for an undeveloped identity for both the Senate and the President. With neither side clear as to how much power it has in the nominations process, each side will seek to antagonistically maximize its power relative to the party.188 This creates a crisis of identity for both the President and the Senate in the nominations process. Both the Senate and the President act in ways seeking to define and describe themselves and their power.

A fine job on a difficult set of issues--with an illuminating deployment of discourse theory for a new angle on one of the central puzzles of the judicial selection process for federal judges: why is there a preception (and perhaps reality) that the process has become more ideological?  The standard theory of the process that draws on "pivotal politics" models in political science predicts that gridlock should occur whenever the status quo (the ideological balance on the relevant court) is inside the gridlock zone (essentially the zone defined by the position of the key actors (the President, the median Senator, and the filibuster pivot).  But the conventional wisdom is that such gridlock was rare until the contemporary period.

One possible solution to the puzzle focuses on norms--and this student note attacks the same problem from a different angle.  Recommended, with the caveat that the note does not display a full familiarity with the literature (which should not, I think be expected).

For my take on these issues:

Judicial Selection: Ideology versus Character

Judicial Selection, Appointments Gridlock, and the Nuclear Option (with David Law)

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Lawrence B. Solum

Koppelman on Corruption of Religion

Andrew Koppelman (Northwestern University School of Law) has posted Corruption of Religion and the Establishment Clause (William & Mary Law Review, Vol. 50, 2008) on SSRN.  Here is the abstract:

Government neutrality toward religion is based on familiar considerations: the importance of avoiding religious conflict, alienation of religious minorities, and the danger that religious considerations will introduce a dangerous irrational dogmatism into politics and make democratic compromise more difficult. This paper explores one consideration, prominent at the time of the framing, that is often overlooked: the idea that religion can be corrupted by state involvement with it. This idea is friendly to religion but, precisely for that reason, is determined to keep the state away from religion.

If the religion-protective argument for disestablishment is to be useful today, it cannot be adopted in the form in which it was understood in the 17th and 18th centuries, because in that form it is loaded with assumptions rooted in a particular variety of Protestant Christianity. Nonetheless, suitably revised, it provides a powerful reason for government, as a general matter, to keep its hands off religious doctrine. It offers the best explanation for many otherwise mysterious rules of Establishment Clause law.

And from the text:

As the common ground shrinks, however, its basis must become more abstract and vague. Christianity will no longer do the job. Neither will monotheism. But the idea that religion is something of value, and that that value is jeopardized when religious questions are adjudicated by the state, may continue to provide the common ground that is needed.

The pluralism we now face was not imagined by the framers. It is therefore impossible to attribute to them any view about it. Protestant Christianity was so pervasive in their culture that they did not even consider whether its establishment was inconsistent with religious liberty.285 Modern religious pluralism has generated new knowledge about the range of religious issues that are potentially subject to corruption by state interference.

And:

The definition of religion in American law appears to work just this way [i.e., along the lines of Wittgenstein's concept of "family resemblence"]. There is no set of necessary and sufficient conditions that will make something a “religion.” But it is remarkable how few cases have arisen in which courts have had real difficulty in determining whether something is a religion or not.293 In the context of the hands-off rule, religion should be understood by reference to a set of ultimate questions that the state must not try to answer. But the state can recognize and promote the good of religion, understood at a certain level of abstraction. Neutrality is fluid; it is available in many specifications.294 The American approach is one defensible specification. The state is agnostic about religion, but it is an interested and sympathetic agnosticism. The state does not say “I don’t know and you don’t either.” Rather it declares the value of religion in a carefully noncommittal way: “It would be good to find out. And we encourage your efforts to do that.”

The precise character of the good being promoted is itself deliberately left vague, because the broad consensus on freedom of religion would surely collapse if we had to state with specificity the value promoted by religion. “Religion” denotes a cluster of goods, including salvation (if you think you need to be saved), harmony with the transcendent origin of universal order (if it exists),295 responding to the fundamentally imperfect character of human life (if it is imperfect),296 courage in the face of the heartbreaking aspects of human existence (if that kind of encouragement helps),297 a transcendent underpinning for the resolution to act morally (if that kind of underpinning helps),298 contact with that which is awesome and indescribable (if awe is something you feel),299 and many others. No general description of the good that religion seeks to promote can be satisfactory, politically or intellectually.300 The establishment clause permits the state to favor religion so long as “religion” is understood very broadly, forbidding any discrimination or preference among religions or religious propositions.

Another interesting angle on the problem that Koppelman attempts to address might be provided by asking the question--what would count as a good reason (or good set of reasons) for treating a given set of practices or beliefs as "nonreligious."  An encompassing list of things that count as religious cannot do any work by itself--because it provides no "guidance where guidance is needed."

Recommended.

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Lawrence B. Solum

Dillard on "Antecedent Law"

Carter Dillard (New York University School of Law) has posted Antecedent Law: The Law of People Making on SSRN.  Here is the abstract:

In our conception of law we have largely presumed the process by which the people whose behavior the law is meant to regulate come to be present and susceptible to the law's influence. As a result that process is largely outside of our account of the law, and any role the law might have over the matter is relatively ignored. This essay introduces a simple and concrete conceptual device, a form of law called antecedent law, that seeks to undue this presumption and refocus our attention on that which determines the presence of persons in the polity and their susceptibility to law. This essay introduces the form antecedent law, describes its role in recreating the polity, begins to identify and advocate for a substantive content for the form - namely that which maximizes what Joseph Raz has called valuable autonomy, and finally touches on three potential counterarguments which would reject the form and its contents. In less abstract terms this essay invites us to change the way we think about seemingly disparate issues like procreation, immigration, and education, their relation to law, and the common and uniquely compelling interests we and future generations have in them.

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Lawrence B. Solum

Halliday, Block-Lieb, and Carruthers on Debtor Participation in Bankruptcy Reform

Terence C. Halliday , Susan Block-Lieb and Bruce Carruthers (American Bar Foundation , Fordham University School of Law) have posted Missing Debtors: National Lawmaking and Global Norm-Making of Corporate Bankruptcy Regimes (Center on Law and Globalization Research Paper No. 08-03) on SSRN. Here is the abstract:

Our comparative case studies of bankruptcy lawmaking reveal an apparent political universal. In neither advanced (U.S., Britain) nor developing countries (China, Indonesia, Korea) do debtors consistently play a major role in corporate bankruptcy reforms. This is a puzzle. Debtors (managers/owners) are the subjects of bankruptcy law. It is their corporations that are liquidated or reorganized. It is upon their discretion that much decision-making relies in corporate restructuring. Yet, with few exceptions, they are little consulted or show little interest in contributing to reforms. How is this to be explained? Moreover, a similar pattern can be observed UNCITRAL's global norm-making for corporate bankruptcy regimes. Debtors are even more remote from the creation of model laws, legislative guides, and insolvency principles. Yet the central tendency of global norms has been to strengthen the rehabilitative ideal in corporate reorganization. Based on our research on global normmaking and national lawmaking in Britain, the U.S., China, Indonesia and Korea, the paper considers six hypotheses: (1) Debtors do not recognize their own interests; (2) Debtors are unable to mobilize; (3) Debtors shy away from the odium of corporate failure; (4) Debtors are blocked by other stakeholders from exercising influence; (5) The most powerful debtors can solve their financial problems outside bankruptcy law; (6) Debtors' interests are articulated by other influential stakeholders.

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Lawrence B. Solum

Engle on Social Contracts & Natural Law

Eric Engle (Universität Bremen) has posted The Social Contract: A Basic Contradiction in Western Liberal Democracy on SSRN.  Here is the abstract:

The social contract and state of nature are accepted legitimating myths in the liberal democracies, yet do not correspond to reality. In contrast, a theory of natural law (lex naturalis, the law of the jungle) combined with ius naturalis (natural justice - right reason in accord with the law of nature) is internally consistent and externally verifiable and thus an adequate description of reality - natural law is a consistent and complete system with more than purely formal value. Yet, natural law theories were rejected by late modernity in favour of pure positivism and voluntarism - with disastrous consequences. Natural law arguments are the basis of the individual rights underlying the social contract model of liberal democracy and so the rejection of natural law should entail the rejection of social contract theory. Contemporary theorists such as Dworkin, Rawls and Nozick struggle to this very day with the concept of the social contract and state of nature without however consciously developing or deploying any theory of natural law and are thus doomed to irrelevance and failure because both the social contract and the state of nature are ahistorical myths. A reconceptualisation of the foundations of the state requires recognition of the validity of natural law and the rectitude of the Aristotelian view that the state is inevitable and a natural phenomena. The social contract is no answer to the problems of state formation or legitimation. Liberal democracies would more consistently and coherently legitimate themselves by reference to laws founded not on a mythical social contract but which reflect the facts of human nature.

S

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Lawrence B. Solum

Legal Theory Lexicon: Consent

Introduction

Most law students begin realize that consent is a powerful legal and moral concept early in the first year of law school. A physical blow to the person is a battery—unless the blow was landed in a boxing match, in which case consent turns the battery into something that is legally permissible and not actionable, even if it results in serious harm. Intercourse without consent is the very serious crime of rape; intercourse with consent is quite something else.

The basic legal structure is easy to grasp. But what is consent? Why does it have the legal and moral force that it does? When is it valid and when is it invalid?

This entry in the Legal Theory Lexicon is about the idea of consent in legal contexts involving interpersonal (but not political) relationships. The entry will explore what consent is and why consent is important, both legally and morally. Our investigation will also explore the conditions under which consent might be said to be “invalid,” e.g. in cases where consent was obtained through deception, coercision, or in which the consenting person lacked capacity to give consent. As always, the Legal Theory Lexicon is aimed at law students, especially first-year law students, with an interest in legal theory.

The Ontology of Consent

What is consent? We all know about paradigm cases of consent and its absence. Consent is clearly present (ceteris paribus) when someone says “I consent” and really means it. Consent is absent when someone says, “I object” and really means it. But the ability to distinguish clear cases of consent and its absence is not sufficinet for a theory of consent.

In general, there are two families of theories about the nature of consent. One theory is that consent is a mental state—either an affective state such as desire or a volitional state such as choice. The second theory is that consent is a performative—a speech act in which one person agrees to something by communicating with another person (or persons). Each of these two approaches to consent requires some additional explanation.

Consent as a Mental State

The first possibility is that consent is a mental state. But what kind of mental state? Is a consent a willing, a wish, a desire, a choice, a preference, or something else? We can investigate two possibilities:

Consent as an Affective Mental State One possibility is that when Alice consents to be kissed by Ben, her consent consists in a certain attitude towards the kiss. For example, if Alice wants (or desires) Ben to Kiss her, then we might be tempted to say that Alice has consented to the Kiss. Another candidate for the relevant affective mental state might be preference. We might say that Alice consents to Ben’s kiss if Alice prefers Ben’s kissing her to the alternative.

Consent as a Volitional Mental State There is another possibility. It might be that consent is not attitude but a decision, choice, or willing. Thus, we might say that Alice consents to Ben’s kiss if Alice had chosen that Ben kiss her.

Affective mental states like desires or preferences are not identical to volitional mental states like choosings or decisions. To want something is different than to having chosen to do it. Of course, there may be a close relationship between affective and volitional states. For example, you might believe that when you have an all-things-considered desire to be kissed, then the choice—the choosing to be kissed—follows more or less automatically. These are deep waters that we can elide for the purposes of this bare-boned introduction to the idea of consent.

Consent as a Performative

Most American jurisdictions define legal consent as a mental state, but it is not clear that our ordinary language conception of consent can be reduced to a mental state. Consent is both a noun and an intransitive verb. Thus, we say things like, “I consent” or “He consented to having his name put forward in nomination.” When used in this way consent seems to be some kind of action, accomplished through communication.  Consent could be a performative--a communicative act in which the speaker communicates permission for or agreement to a course of action.

So which is it? Is consent a mental state or a communicative action? This is not the sort of question that can be resolved by a Legal Theory Lexicon entry. My opinion is that the performative theory best captures the ordinary language conception of consent. One reason I think so is that the idea of secret consent—which would be a perfectly alright if consent is a mental state—doesn’t seem to comport with our usual way of talking about consent. “I consented to the operation, but I didn’t tell anyone”—sounds quite odd to my ear. The law goes both ways, however, and most jurisdictions use a mental state conception of consent for the purposes of defining “legal consent.”

The Moral and Legal Force of Consent

Assuming we knew what consent is, we can ask the further question, “What legal and moral effect does consent have and why?

The Normative Significance of Consent

Sometimes it is said that consent works moral magic. What does that mean? The idea is that consent has a tranformative moral power: consent can tranform a wrongful action into a rightful action. Batteries are both morally wrong and and subject to legal sanctions (both criminal and civil), but consent somehow drains the punch of its moral and legal offense. Taking my property with the intent of permanently depriving me of use and enjoyment is theft, but taking my property with consent is simply accepting a gift.

Why Does Consent Have Moral and Legal Force

Once we recognize that consent does have some kind of transformative moral and legal force, the next question we might ask is why? There are lots of way to approach the question why consent has moral force. For example, we might approach the question from the perspectives of the major families of moral theories. Let’s give that a whirl.

Autonomy and Consent--Some moral theories make “autonomy” a central moral idea. Of course, autonomy isn’t easy to describe—especially in a sentence or so. We might say that the core idea of autonomy is self-direction or self control. An autonomous person is one who directs her own life, and not someone whose life is controlled by others. Of course, we can’t all do whatever we would like without running the risk of interfering with each other. Hence, from the idea of autonomy, we might derive the idea of moral rights and duties that create for each individual a sphere of autonomous action, in which each individual can direct her own life without interfering with the like freedom of others to do the same. The moral force of consent comes naturally if one accepts autonomy as a central moral value. Consent allows others to enter one’s sphere of autonomy. So long a consent is freely given, consented-to rights violations seem perfectly consistent with the idea that rights protect a sphere of individual choice.

Utility and Consent--Can utilitarians account for the moral force of consent? Of course, for a utilitarian, consent really can’t be said to be “moral magic.” For utilitarians, the bottom line question is whether a particular state of affairs involves greater utility than the alternatives. So, on the surface, it might seem like consent is not, per se, morally relevant. Consent is just a fact; only good and bad consequences are morally significant.

But it is more complicated than that. There are many possible forms of utilitarianism, and one dimension of variation concerns the various conceptions of utility. One important form of utilitarianism holds that there utility consists in the satisfaction of preferences. Suppose that one also believed that consent was the mental state of preferring the consented-to action to the alternatives. If no third parties were affected (and assuming that consent was freely given on the basis of adequate information), then the consented-to activity would maximize utility. So for at least some utilitarains, consent would be presumptive evidence that the consented-to action would maximize utility and hence be the morally best action.

Virtue and Consent--Consent will also be relevant to aretaic (or virtue-based) moral theories. One of the virtues is justice, and humans with this virtue will not violate the rights of others without their consent. Virtue ethics differs from deontological and utilitarian theories in part because virtue ethics denies that there is any decision procedure for ethics. That is, a virtue ethicist is unlikely to believe that consent can work “moral magic,” but instead is likely to believe that the moral salience of consent is contextual—depending on the particular circumstances of the case. Virtue ethics is also likely to ask the question whether the person given the consent is a virtuous agent. Humans without the virtues are likely to give consent when they shouldn’t—when, for examploe, the consented-to action might actually cause unjustified harm to the fortunes or capacities of the consenting agent. In such circumstances, virtue ethics might deny that consent works moral magic. A virtuous agent might regard herself as obligated not to take advantage of consent—despite the fact that the consent was freely given by an agent who meets the legal standard of competence in circumstances without coercion or deception.

Valid and Invalid Consent

We have one more important topic to consider. Consent may be invalid. Let’s explore three kinds of reasons for concluding that consent is invalid, and hence that consent does not transform the legal or moral situation: (1) deception, (2) coercion, and (3) incapacity.

Deception--Consent obtained by deception may be invalid, either morally or legally or both. For example, if Alice consents to Ben’s kiss, because Ben tells Alice that he likes her very much, but Ben in fact does not like Alice at all, then Alice’s consent may not be morally valid. Because Ben obtained Alice’s consent by deception, Ben is not morally authorized to kiss Alice. In this case, however, the law would not consider Alice’s consent to be legally invalid. Although Ben may be morally wrong if he kisses Alice, he will not have committeed the crime of sexual assault or the tort of battery. Legally, this kind of deception is not sufficient to invalidate Alice’s consent.

Outright fraud—intentionally making false statements about something materially relevant to the decision at hand—is the most obvious form of deception. But deception may involve nondisclosue as well as lying. If Ben fails to disclose to Alice that Ben is married, then Alice’s consent may not be morally transformative—although once again, the law will still treat Alice’s consent as legally valid.

Coercion--Consent may also be invalid because it is coerced. For example, if Alice consents to Ben’s kiss because Ben has threatened to harm her if she does, then her consent is invalid. And this is true, both morally and legally. Because consent was coerced, Ben should not kiss Alice and if he does, he will have acted tortiously and perhaps criminally as well.

One problem with coercion is distinguishing threats from offers and warnings. Consent is not invalidated because it is induced by an offer or warning, but it will be invalidated if induced by a threat. How do we differentiate threats from offers and warnings. One strategy is to specify a baseline of legal and/or moral entitlement. We call a communication promising an action in exhange for consent a threat, if the action would move the party below the baseline of entitlements. We call a communication promising an action in exchange for consent, if the action would move the consenting party above the baseline of moral and/or legal entitlements. So if Ben promises Alice that he will let her choose the movie in exchange for a kiss, that is an offer. If he promises to force Alice to watch a movie she doesn’t like if she doesn’t consent to a kiss, that is a threat.

Warnings are neither offers nor threats. One kind of warning arises when the warning party predicts consequences outside its control. If Ben predicts to Alice that she will feel silly if she doesn’t consent to a kiss, then he has warned her of a consequence, but he has neither made a threat nor an offer.  Another kind of warning involves situations in which the warning party does have control.  For example, "If you continue to smoke, I will leave the room," may be a warning rather than a threat if the warning party does not intend to change the behavior of the party being warned.

Incapacity--Consent requires capacity. For example, children cannot consent to sexual relations as a matter of law—hence, consent is no defence to a charge of statutory rape. On the other hand, children can consent to lots of things, including rough play such as wrestling. Other examples of incapacity include mental illness, profound developmental disability, or severe intoxication. If Ben consents to Alice’s taking Ben’s new Mini Cooper on a two-week road trip while Ben is completely blotto (and Alice knows this), then his consent may be invalid and hence Ben may be legally entitled to demand that Alice return his car.

Conclusion

Consent is one of those ideas that cuts across courses and theoretical approaches. We’ve barely scratched the surface of consent, but I hope that this post has provided a very basic introduction to some of the key concepts.

Links

Scott Anderson, Coercion, Stanford Encyclopedia of Philosophy

Louis Charland, Decision-Making Capacity, Stanford Encyclopedia of Philosophy

Bibliography

Alan Wertheimer, Consent to Sexual Relations. (Cambridge: Cambridge University Press 2005).

Peter Westen, The Logic of Consent (Ashgate Publishing 2004).

(This entry was last updated on September 22, 2008.  I owe thanks to Alan Wertheimer for a very helpful clarification re warnings.)

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   September 21 2008: Larry Ribstein

Some thoughts about SOX II

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Thomas Ulen

More Financial News

David Leonhardt of The New York Times is back from his several-month sabbatical and has an excellent article, "Bubblenomics," in today's New York Times Magazine on the financial crisis. TSU

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Sara Benson

D.C. District Court Rules in Favor of Transsexual Plaintiff

The Schroer case has been pending for a while now in D.C. district court. There have already been two rulings out of the court denying the defendant Library of Congress's motions to dismiss the claim that Diane Schroer a male-to-female...

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   September 20 2008: Lawrence B. Solum

Legal Theory Bookworm

The Legal Theory Bookworm recommends The Invisible Constitution (Inalienable Rights) by Laurence H. Tribe.  Here is a description:

As everyone knows, the United States Constitution is a tangible, visible document. Many see it in fact as a sacred text, holding no meaning other than that which is clearly visible on the page. Yet as renowned legal scholar Laurence Tribe shows, what is not written in the Constitution plays a key role in its interpretation. Indeed some of the most contentious Constitutional debates of our time hinge on the extent to which it can admit of divergent readings.

In The Invisible Constitution, Tribe argues that there is an unseen constitution--impalpable but powerful--that accompanies the parchment version. It is the visible document's shadow, its dark matter: always there and possessing some of its key meanings and values despite its absence on the page. As Tribe illustrates, some of our most cherished and widely held beliefs about constitutional rights are not part of the written document, but can only be deduced by piecing together hints and clues from it. Moreover, some passages of the Constitution do not even hold today despite their continuing existence. Amendments may have fundamentally altered what the Constitution originally said about slavery and voting rights, yet the old provisos about each are still in the text, unrevised. Through a variety of historical episodes and key constitutional cases, Tribe brings to life this invisible constitution, showing how it has evolved and how it works. Detailing its invisible structures and principles, Tribe compellingly demonstrates the invisible constitution's existence and operative power.
Remarkably original, keenly perceptive, and written with Tribe's trademark analytical flair, this latest volume in Oxford's Inalienable Rights series offers a new way of understanding many of the central constitutional debates of our time. 

And from the reviews:

"His original views here are carefully distinguished from the ideas of an 'unwritten Constitution.' His provocative analysis and arguments will challenge readers' understanding of constitutional provisions. Strongly recommended for all academic libraries."--Library Journal

"Only a grand master like Laurence Tribe could write this masterpiece. Constitutional interpretation, the understanding of the role of a constitution in a nation's life, and the relationship between constitutional text and context will never be the same as they were before this powerful, inspiring, and original book was written."--Aharon Barak, Chief Justice of Israel (1995-2006)

"From our country's most renowned scholar of constitutional law comes a book so breathtaking in its originality and wide-ranging in its scope that it will become an instant classic. To read The Invisible Constitution is to enter the mind of a brilliant thinker as he reflects upon many of the most important issues of the day."--Doris Kearns Goodwin, author of Team of Rivals: The Political Genius of Abraham Lincoln

"Laurence Tribe offers us a wonderfully far-reaching and mind-bending seminar on what lies beneath, beyond, before, betwixt and between the ink marks of the parchment Constitution and its amendatory postscripts."--Akhil Amar, author of America's Constitution: A Biography

"One of America's leading constitutional experts has delivered a thought-provoking volume that illuminates the complexities of the country's most important document."--U.S. Senator Dianne Feinstein

"Laurence Tribe yet again delivers the goods: this is a thought-provoking examination of some of the most critical constitutional questions of our times. Eminently readable, The Invisible Constitution will give rise to many an important debate--and, perhaps, help put an end to one or two as well."--Nina Totenberg, National Public Radio

"This lucid, deeply engaging book is truly mind-expanding, looking beyond the text of the document for a completely new framework for understanding the Constitution and its interpretation."--Scott Turow, author of Presumed Innocent and Ultimate Punishment

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Lawrence B. Solum

Download of the Week

The Download of the Week is Virtue's Domain by Ekow Yankah.  Here is the abstract:

If at the end of your life you were told you had fulfilled all your moral duties, you would be proud. If you were told you only fulfilled your moral duties, you would be less proud. We all aim to do more than fulfill our duties. We wish to have been more generous than obligatory, more patient, more wise... in short, we wish to be virtuous.

This insight, that there is more to moral well-being than either our moral duties or good consequences, is central to modern virtue ethics. In its important neo-Aristotelian strain, virtue ethics advocates that success in life is also determined by living an ethically rich life, showing sound practical reasoning and exhibiting the human virtues.

Virtue ethics is also importantly influencing jurisprudence. Understanding the role virtue plays in law reveals the way in which our criminal punishment regimes are based on a view of poor underlying character. When these insights are embedded in law, however, things go horribly awry. Because virtue theories premise blame, in part, on a failing of character within the offender, they alter our view of the offender and create a permanent criminal caste. With our compassion blunted, our ugliest prejudices flourish and we fail to notice that our criminal law has become a powerful tool of racial and class suppression. Equally disturbing, even the most sophisticated character theories cannot be reconciled with our commitment to liberalism, particularly with the central place of autonomy within liberalism.

This article argues that only by returning to Kantian and Hegelian Act theories of punishment can we dissolve the view of offenders as permanently tainted and stay true to our liberal commitments.

Download it while its hot!

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Robert Lawless

Comments Again Unmoderated

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Thomas Ulen

Financial Crisis

The causes of the financial crisis and the particular correctives of the federal government's bailout plan are both a bit hazy to us nonspecialists. Today's Freakonomics column, guest written by Douglas Diamond and Anil Kashyap and available here, is extremely...

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   September 19 2008: Sara Benson

Support for Ban on Same-Sex Marriage Waning

Polls show that support for the same sex marriage ban on the California ballot is waning after the language was modified in response to the California Supreme Court decision. The new language states clearly that the ban is intended to...

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Lawrence B. Solum

Coate & Fischer on Daubert, Game Theory, and Mergers

Malcolm B. Coate and Jeffrey H. Fischer (U.S. Federal Trade Commission (FTC) and U.S. Federal Trade Commission) have posted Daubert, Science, and Modern Game Theory: Implications for Merger Analysis on SSRN.  Here is the abstract:

To be admissible in federal court under the Daubert standard, expert economic testimony must be (1) based on scientific analysis; and (2) aid the dispute resolution process. Expert evidence should be considered scientific when it (1) meets Karl Popper's falsification standard; and (2) some evidence compatible with the scientific proposition is provided. Standard competitive and monopoly models are well supported in the literature and therefore would generally meet this standard, while structuralism clearly fails the test. Modern game theoretic analysis focuses on either collusion (coordinated interaction) or unilateral effects but only raises the possibility of a merger-related competitive problem and thus must be supported with case-specific evidence to be considered scientific. Economic evidence underpinning game theoretic analysis can involve either a "systematic" study of competition in a market or a narrow "shock" analysis of a specific economic event. When both parties to a merger dispute provide evidence admissible under the Daubert standard, the court must resolve the scientific dispute in the decision on the merits.

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Lawrence B. Solum

Barrow & Rouse on School Vouchers

Lisa Barrow and Cecilia E. Rouse (Federal Reserve Bank of Chicago and Princeton University - Industrial Relations Section) have posted School Vouchers: Recent Findings and Unanswered Questions (Economic Perspectives, Vol. 32, No. 3, 2008) on SSRN.  Here is the abstract:

The authors review the existing literature on the impact of school vouchers on student achievement. They conclude that expectations about the ability of vouchers to drastically improve student achievement, at least as measured by test scores, should be tempered by the results of the studies to date. Also, there is very little evidence about the potential for public schools to respond to increased competitive pressure generated by vouchers.

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Lawrence B. Solum

Hoffman on Emergencies & Vulnerability

Sharona Hoffman (Case Western Reserve University - School of Law) has posted Preparing for Disaster: Protecting the Most Vulnerable in Emergencies (UC Davis Law Review, Forthcoming) on SSRN.  Here is the abstract:

Many federal, state, local and private entities are investing significant resources in disaster readiness initiatives. Often disregarded, however, are the special needs of vulnerable populations during disasters. In the context of emergencies, vulnerable groups may include individuals with disabilities, pregnant women, children, the elderly, prisoners, members of ethnic minorities, people with language barriers, and the impoverished. The fate of the disadvantaged during disasters has received little attention in the legal literature, and this article begins to fill that gap. It examines ethical theories of distributive justice and existing federal and state civil rights and emergency response laws and argues that vulnerable populations are entitled to significant protection under existing legal and ethical frameworks. It also, however, highlights the shortcomings of the contemporary statutory scheme insofar as it addresses the needs of the disadvantaged during disasters and urges that it be supplemented by additional requirements. The Article argues that for vulnerable populations, successful disaster response is dependent upon careful planning and develops a detailed proposal for statutory provisions that will mandate adequate preparation to safeguard the welfare of the vulnerable in emergencies.

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Lawrence B. Solum

Dombalagian on Investment Banks & Systemic Risk

Onnig H. Dombalagian (Tulane Law School) has posted 'Too Interconnected to Fail?': Investment Banks and Systemic Risk on SSRN. Here is the abstract:

I argue that the most efficient way to regulate investment banks for financial responsibility is to make them bear (at least some) of the consequences of a systemic crisis. More prudential oversight is not likely to be helpful, in an age of rigorous risk modeling, and complex federal insolvency regimes (as in the banking industry) are not likely to be tractable for investment banks. The most effective incentive for firms to take a more pro-active role in counterparty and systemic risk management, thus, is to formalize the existing expectation that financial services conglomerates participate (at least, to a degree commensurate with their interest) in the rescue of an insolvent competitor whom the industry deems "too interconnected" to fail. To that end, this Article proposes a self-regulatory framework for top-tier financial holding companies and investment banks both to make such determinations and help shoulder the burden in addressing the consequences.

Congress would enact legislation creating the framework of such an organization, as well as principles for the sharing of information among participating firms, to be implemented by specific rules. The organization would be responsible for identifying risks, determining the flows of information necessary to contain those risks, and building mechanisms to share that information. More importantly, the organization would be expected to participate in the financing (and share in the profits or loss resulting from) any bailout of a member entity, pursuant to rules established by the organization. An industry regulator (similar to the SEC) would be responsible for overseeing rulemaking that establishes procedures for making such determinations and enforcing compliance with those rules. The Federal Reserve Board, meanwhile, would have the authority to monitor the activities of individual member firms, to set the terms for any acquisition of an insolvent member firm within the parameters established by the industry framework, and (at its discretion) to finance or fund a bailout, in part or in whole, if it is determined to be in the public interest.

Timely.

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