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Donor Reaction to Salient Disclosures of Nonprofit Executive Pay: A Regression-Discontinuity Approach
No full textWe evaluate the effect of highly salient disclosure of private college and university president compensation on subsequent donations. Using a differences-in-discontinuities approach to compare institutions that are highlighted in the Chronicle of Higher Education’s annual “top 10” list of most-highly compensated presidents against similar others, we find that appearing on a top 10 list is associated with reduced average donations of up to US$5.0 million in the first full fiscal year following disclosure, despite greater fund-raising by “top 10” schools. We also find some evidence that top 10 appearances are correlated with slower compensation growth and rising enrollment in subsequent years. We interpret these results as consistent with the hypothesis that donors care about compensation but are typically inattentive to pay levels. We discuss the implications of these findings for the regulation of nonprofits and for our broader understanding of the pay-setting process at for-profit as well as nonprofit organizations
The Integration of Environmental Law into International Investment Treaties and Trade Agreements: Negotiation Process and the Legalization of Commitments
Get PDFThere were seventeen international investment agreements (“IIAs”) signed around the world in 2012, and each one of them contained some provision relating to the protection of the environment. In comparison, no investment treaty signed before 1985, and fewer than ten percent of treaties signed between 1985 and 2001, contained any reference to the environment at all. Environmental language has become increasingly common in bilateral investment treaties (“BITs”), and to an even greater degree in other IIAs, such as free trade agreements (“FTAs”). The legal implications of the integration of environmental law and norms into investment law treaties have yet to be fully explored, though there has been significant literature on trade and environment “linkages.” This paper seeks to give a U.S.-centric overview of the recent trends in the inclusion of environmental provisions in BITs and FTAs. In particular, this paper focuses on the recognition and integration of multilateral environmental agreements (“MEAs”) into the text of investment agreements. The analysis of this integration takes two approaches. In the first, the international legal implications of the inclusion of MEAs into other international treaties is aided by the concept of “legalization,” first introduced in 2000 by Abbot et al., in which the “hard” or “soft” nature of a legal norm is determined by the degree to which it possesses three characteristics: obligation, precision, and delegation. The second approach of the paper asks how and why these MEAs came to be prioritized in the trade negotiations of the United States. The answer to the question is found by applying theories of international negotiation, primarily Robert Putnam’s theory of “two-level games,” to the history of the development of environmental provisions of trade and investment agreements
The Return of the King: The Unsavory Origins of Administrative Law
Get PDFPhilip Hamburger’s Is Administrative Law Unlawful? is a truly brilliant and important book. In a prodigious feat of scholarship, Professor Hamburger uncovers the British and civil law antecedents of modern American administrative law, showing that contemporary administrative law “is really just the most recent manifestation of a recurring problem.” That problem is the problem of power: its temptations, its dangers, and its tendency to corrupt. Administrative law, far from being a distinctive product of modernity, is thus the “contemporary expression of the old tendency toward absolute power – toward consolidated power outside and above the law.” It represents precisely the forms of governmental action that constitutionalism – both in general and as specifically manifested in the United States Constitution – was designed to prevent. Accordingly, virtually every aspect of modern administrative law directly challenges the Constitution.
This extraordinary book will be immensely valuable to anyone interested in public law. My comments here concern two relatively minor points that call for more clarification. First, Professor Hamburger does not clearly identify what it means for administrative law to be “unlawful.” Does that mean “in violation of the written Constitution”? “In violation of unwritten constitutional norms?” In violation of natural law”? There is evidence that Professor Hamburger means something more than the former, but it is not clear what more is intended. In order to gauge the real status of administrative law, we must have a more direct conception of law than Professor Hamburger provides.
Second, much of Professor Hamburger’s historical and constitutional analysis focuses on the subdelegation of legislative authority. While his discussion contains numerous profound insights, including some that require correction in my own prior scholarship on the subject, it does not discuss how to distinguish interpretation by judicial and executive actors from lawmaking by those actors. Presumably, the prohibition on subdelegation of legislative authority prohibits only the latter. Figuring out where interpretation ends and lawmaking begins is one of the most difficult questions in all of jurisprudence, and I am not convinced that Professor Hamburger can successfully perform an end-run around it.
But these are modest nitpicks about a path-breaking work that should keep people of all different persuasions engaged and occupied for quite some time
Is There a Way Forward in the War over the Family ?
Get PDFWhen Judge Posner, in Baskin v. Bogan, expressed incredulity -- given actual demographic trends in family formation -- that state marriage laws excluding same-sex couples furthered interests in “channeling” procreative sex and addressing accidental pregnancy, he brought together two conversations about marriage, family law, and family life that too often proceed independently. In the first, same-sex couples challenging marriage laws and the courts who rule in their favor emphasize the high stakes of exclusion by characterizing marriage as an incomparable institution and a signal that one’s intimate commitment is worthy of equal respect and dignity. To be left out of marriage is to experience a second class form of family life. Similarly, the channeling argument assigns marriage an unrivaled role as the social institution designed to anchor parental investment in children. A second conversation sounds alarms about the disappearance of marriage in a growing number of communities in the United States and the evident drifting by many young adults into sex and parenthood unintentionally and outside of marriage. This conversation warns of the consequences for children of the growing class-, race-, and gender-based marriage divide. Policy analysts debate whether it is possible to close the marriage gap or whether they should instead focus on responsible parenthood.
In Failure to Flourish: How Law Undermines Family Relationships, family law scholar Clare Huntington also invites a holistic assessment of family law’s impact on families and children. Using the yardstick that family law should nurture strong, stable, positive relationships, her inventory reaches dismal conclusions about both structural and dispute-resolution family law. In this essay, I argue that Failure to Flourish arrives at a propitious juncture when it is possible to ask about a way forward in the “war over the family.” I situate Huntington’s book in the context of significant calls, in recent decades, to strengthen families. I assess where Huntington positions herself with respect to what Isabel Sawhill calls the divide between “traditionalists,” who view restoring a norm of childbearing and parenting within marriage as the best way forward and worry that governmental programs undermine marriage and parental responsibility, and “village builders,” who focus less on family form than on the basic proposition that families require the right supports from the larger community to flourish. With respect to dispute resolution family law, I argue that the paradigm shift Failure to Flourish advocates toward a more positive, less adversarial approach is already well under way
Will Uncooperative Federalism Survive NFIB?
Get PDFIn October Term 2012, the Supreme Court decided two cases that are fundamentally at odds: NFIB v. Sebelius and Douglas v. Independent Living Center of Southern California. In NFIB, the Court held that the federal government, at least under some circumstances, may not use the threat of reduced funding in cooperative federalism programs to require states to comply with federal statutory requirements. In Douglas, however, the Court indicated that private litigants should sue federal agencies under the Administrative Procedure Act if those agencies refuse to enforce federal statutory requirements against the states. The problem is that the withdrawal of funding is literally the only enforcement tool that the federal government has in many of these programs. The Supreme Court has thus created liability for federal agencies that they might, in some cases, be unable to avoid. The result could be that Congress gives federal agencies new enforcement tools, but the only alternative tool in current federalism is conditional preemption, which would give rise to a federal takeover in many policy spaces. In the end, the Court\u27s federalism doctrines seem to encourage greater federalization, seemingly at odds with the Court\u27s pro-state intentions
Helping Buyers Beware: The Need for Supervision of Big Retail
Get PDFSince the financial crisis, consumer regulators have closely supervised sellers of credit cards and home mortgages to stamp out anticompetitive practices. Supervision programs give financial regulators ongoing access to sophisticated firms\u27 internal data outside the litigation process. This often enables examiners to identify and correct harmful conduct more rapidly and effectively than would be possible using publicly available information and cumbersome legal tools.Consumers spend four times more on retail goods than on financial products. The retail sector’s dominant firms — such as Amazon, Walmart, Unilever, and Kraft — employ large teams of quantitative experts armed with advanced information technologies, huge volumes of data, and in-store experimentation to develop behavioral economics-related practices analogous to those seen in consumer finance. The empirical data suggest those practices in the aggregate may significantly harm all households, costing even a family at the poverty line hundreds of dollars annually. Yet unlike in consumer finance, regulators have declined to supervise sellers of retail goods.This Article argues for wider adoption of the financial sector’s emerging — though largely unarticulated — paradigm that views regulatory supervision of firms as central to consumer protection. That paradigm suggests the consumer goods sector needs the inverse of what consumer finance needed in the wake of the crisis. Then, Congress created the Consumer Financial Protection Bureau to provide more consumer protection because regulators had previously focused excessively on supervising financial institutions to ensure firms\u27 safety and soundness. In contrast, the consumer goods sector has a regulatory body — the Federal Trade Commission’s (FTC) Bureau of Consumer Protection — that focuses solely on consumer protection but does not supervise firms. Fortunately, congressional action would not be required for the FTC to develop a supervision program. The agency’s leadership would simply need to exercise the authority that Congress long ago granted
Puzzles of Proportion and the Reasonable Military Commander: Reflections on the Law, Ethics, and Geopolitics of Proportionality
Get PDFThis article offers modest reflections on jus in bello proportionality. It suggests that the law of armed conflict (LOAC) build on the only consensus legal standard that exists: that of the good-faith reasonable military commander. The difficulty — here, as with any reasonableness standard — is to identify factors that realistically can, and legally should, guide adherence to it and to consider the objective and subjective dimensions of judgments under the standard. Part II scrutinizes the content and status of Additional Protocol I’s (API) canonical definition of proportionality. It analyzes its text and context to bring out the extent to which API compels more, and more diverse, subjectivities and indeterminacies than commonly recognized. This is not a problem to be solved; it is an inexorable feature of the principle. Part III therefore critiques perhaps the most popular effort to invest proportionality with more precise substantive content: the idea that it requires elites to conduct hostilities as if their own noncombatants were the ones at risk. Part IV considers the prospects for promoting proportionality within the spectrum of lawfulness authorized by the current standard. Those prospects depend on dynamics exogenous to the letter of positive international law but not, for that reason, beyond the influence of international lawyers. Empirical data suggest, for example, that the conceptual redefinition of victory in certain conflicts may encourage elites to respect proportionality conservatively as a matter of sound policy. Yet the point lies less in the validity of this example than in what it illustrates: to operationalize proportionality, the LOAC must identify new dynamics that have (sometimes) supplanted reciprocity. Today’s conflicts have their own characteristic dynamics; the comparative demise of reciprocity did not leave a vacuum. These dynamics might well be impressed into the law’s objective of aligning strategic and humanitarian objectives to further the viability and value of proportionality in modern LOAC
Shareholder Litigation Without Class Actions
Get PDFIn this Article, I imagine a post-class action landscape for shareholder litigation. Assuming, for the sake of this exercise, an environment in which both securities-fraud and transactional class actions are hobbled by procedural or substantive reforms — most likely through the adoption of mandatory-arbitration provisions or fee-shifting provisions — I assess what shareholder litigation would disappear, what would remain, and what a post-class action landscape would look like. I argue that loss of the class action would remove a layer of legal insulation that prevents institutional investors from having to pursue positive value claims against companies. Currently, the class action effectively ratifies fund fiduciary passivity in the face of fraud, for example, as long as the institution files a claim form to collect its share of a class action settlement that has been judicially certified. But without the class action, monitoring and litigation costs for such institutions may increase because fund fiduciaries must monitor their portfolios for, and litigate, positive value claims. Failure to do so could expose them to liability to fund beneficiaries. I offer some suggestive, but incomplete, evidence about how many funds will have positive value claims. I also argue that bizarre gaps in liability coverage for public-pension fund fiduciaries — who serve the funds that have traditionally been the most active litigants — may have unpredictable effects on trustee behavior outside the class action, may tilt in favor of bringing claims, and may also lead to herding behavior in arbitration. I also assess how loss of the class action would affect plaintiff law firms, sketching out scenarios in which these firms disappear, or face new competition from traditional firms, or survive (in small numbers) and perhaps thrive representing institutional investors. I argue that the end of the class action means abandonment of the idea that all investors should be compensated for losses due to fraud or other corporate malfeasance, and I demonstrate that loss of the class action leaves investors in smaller firms with no remedy for wrongdoing.I argue that shareholder litigation without class actions creates a new distortion in the private enforcement regime, what I call the “semi-circularity problem.” Without class actions, negative value claimants would no longer be able to recover for their damages in shareholder litigation. But they would still be forced to subsidize the losses of positive-value claimants to the extent that the smaller investors own shares in defendant companies that must pay damages claims to large institutional investor plaintiffs. Loss of the class action device creates a two-tier legal system for investors: one in which large institutions recover while individuals and smaller institutions do not from the same fraud (or mispriced deal), and one in which smaller investors that still own defendant companies must reach further into their pockets to compensate large institutional investor losses for that fraud (or mispriced deal)
Michael Brown, Eric Garner, and Law Librarianship
Get PDFProfessor Wheeler discusses the police killings of Michael Brown and Eric Garner. He posits that racialized fear is part of what fuels such violence and discusses examples of how racialized fear have impacted his personal life. Wheeler then discusses how and why law librarians can and should be prepared to discuss such events with their law library patrons
Could the Boston Marathon Bomber Receive a Fair Trial in Boston?
No full textLast week, defense attorney Judy Clarke stood before the jury in the case of Boston Marathon bomber Dzhokhar Tsarnaev and urged that mercy be bestowed