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Trump Impeachment Trials: McGahn Supboena and Congressional Oversight
Get PDFA panel of three D.C. Circuit judges rejected the House Judiciary Committee’s request for testimony from Don McGahn, former White House Counsel, finding that the Committee lacked Article III standing to enforce a congressional subpoena in federal court. Framing the issue as one of separation of powers, the court declined to intervene in what it described as a purely political dispute between the executive and legislative branches. The ruling was a significant setback for the House in their efforts to force the Trump administration to comply with Congressional subpoenas and to yield to Congressional oversight more generally. Interestingly, in March, the D.C. Circuit Court of Appeals vacated the three-judge panel’s decision and opted to hold a rehearing en banc on April 28, 2020. Despite court proceedings around the country being delayed as a result of COVID-19, it is expected that this hearing will go forward as planned. This article looks at what we can expect to see in that hearing and what impact a decision could have
Making Sense of Customary International Law
Get PDFThis Article addresses a longstanding puzzle about customary international law (CIL): How can it be, at once, so central to the practice of international law — routinely invoked and applied in a broad range of settings — and the source of such persistent confusion and derision? The centrality of CIL suggests that, for the many people who use it, it is not only comprehensible but worthwhile. They presumably use it for a reason. But then, what accounts for all the muddle and disdain?
The Article argues that the problem lies less in the everyday operation of CIL than in the conceptual baggage that is brought to bear on it. Most contemporary accounts of CIL reflect what can be called a “rulebook conception.” They presuppose that, in order for a given proposition to be CIL, it must apply more or less in the same way in all cases of a given type, rather than fluctuate without established criteria from one situation to the next. This rulebook conception is wrong. It does not accurately describe the range of normative material that global actors, in the ordinary course, use and treat as CIL. And because it is wrong, it systematically sows confusion and leads analysists to devalue CIL as a kind of international law. We should stop imagining that CIL operates like a rulebook and should recognize that it is an inherently contingent and variable kind of law
Democracy and Decolonization: How India Was Made
Get PDFFor some years, the endurance of constitutional democracy in India has been a puzzle for political scientists and public law scholars. The creation of self-government on Indian soil challenged Western political theory and history, and its survival in atypical and unusual circumstances has mystified students of comparative politics. If the conventional wisdom is believed, self-rule in a country with major levels of poverty, illiteracy, and diversity should neither have been instituted nor sustained. India has managed to hold elections with remarkable regularity, and it boasts of a constitutional culture where conflict has, for the most part, been articulated through legal means. The troubling reality of contemporary Indian political life — where the principles of constitutional democracy appear to be under serious threat — does not take away from the achievement of modern India or from the puzzle that the nation’s history invites. Regardless of whether India will remain a constitutional democracy, it is somewhat astonishing that it was ever one to begin with
Annual Report 2019-2020
Get PDFLooking back on the 2019-2020 academic year, we are pleased to reflect on another highly productive period for the Millstein Center
Lessons from the Prekindergarten Movement
Get PDFI am deeply grateful for the ambition of Nancy Dowd’s book, Reimagining Equality. Professor Dowd offers a powerful and essential vision for addressing the entrenched inequalities that pervade our society. And she is unapologetic about the breadth and depth of change needed to achieve this vision. I do not want to distract from her inspiring call for a New Deal for Children by introducing questions about political feasibility, but thinking about what is possible in the here and now is a useful place to begin the conversation about systemic change.
So, what is possible in this era of Trump? Not much. Let’s not forget that the Trump Administration is cutting back, every way possible, on state support for families. Consider the invitation from the Center for Medicare and Medicaid Services to states, authorizing work requirements for recipients of Medicaid. This policy may play well politically, but it does not accord with the reality facing many low-income families. Or the Trump Administration’s proposal to alter the eligibility rules for SNAP benefits, arguing that SNAP and similar programs are supposed to be “A Second Chance, Not A Way of Life.” Or consider the Administration’s redefinition of the “public charge” element in immigration law, which makes it harder for many noncitizens who receive public benefits, including Medicaid and SNAP, to receive a green card. In short, the policies of this administration could not be further from a New Deal for Children
The Dual Origin of the Duty to Disclose in Roman Law
Get PDFThe Roman law remedies for failure to disclose in sales contracts were developed by two different institutions: that of the aediles, with jurisdiction on market transactions effected through auctions, and that of the praetor, with general jurisdiction including private transactions. The aedilician remedies — the actiones redhibitoria and quanti minoris — allowed for rapid transactions and inexpensive litigation but generated some allocative losses ex post, as they did not incentivize the parties to exchange information about idiosyncratic characteristics of the goods for sale. In contrast, the remedy developed by the praetor — the actio ex empto — implied lengthier transactions and more expensive litigation but eliminated the ex post allocative loss, as it fully protected the buyers’ idiosyncratic interests. The analysis reveals that these Roman law remedies maximized the value of the underlying contracts and sheds new light on how differences in the lawmaking institutions affect the law produced by them
Preventing the Bad from Getting Worse: The End of the World (Trade Organization) As We Know It?
Get PDFRecent survey evidence and proposals made in long-running negotiations to improve WTO dispute settlement procedures illustrate that many stakeholders believe the system needs improvement. The Appellate Body crisis could have been avoided but for the use of consensus as WTO working practice. Resolving the crisis should prove possible because the matter mostly concerns a small number of more powerful WTO members. We make several proposals to revitalize the WTO appellate function but argue that unless the WTO becomes a locus for new rulemaking, re-establishing the appellate function will not prevent a steady decline in the salience of the organization. A key challenge is that plurilateral cooperation go beyond a focus on good regulatory practices and coordination failures and address sources of major trade spillovers. Doing so will depend on resolving the dispute settlement conflict given the need for new plurilateral agreements to be enforceable
Taking Compliance Seriously
Get PDFHow can we ensure corporations play by the “rules of the game” – that is, laws encouraging firms to avoid socially harmful conduct? Corporate compliance programs play a central role in society’s current response. Prosecutors give firms incentives – through discounts to penalties – to implement compliance programs that guide and monitor employees’ behavior. However, focusing on the incentives of firms overlooks the perspective of managers, who decide how much firms invest in compliance.
We show that stock-based pay, ubiquitous for corporate executives, creates systematic incentives to short-change compliance. Compliance is a long-term investment for firms, whereas managers’ time horizon is truncated to the date they expect to liquidate stock. Moreover, investors find it hard to value compliance programs because firms routinely disclose little or nothing about their compliance activities. We show that stock-compensated managers prefer not to disclose compliance because such disclosure can reveal private information about a firm’s propensity to misconduct. As a result, both managers and markets are likely myopic about compliance.
How can this problem be resolved for the benefit of society and shareholders? Boards of directors are supposed to act as monitors to control managerial agency costs. We show that the increasing use of stock-based compensation for directors, justified as a means of encouraging more vigorous oversight of business decisions, also has a corrosive effect on boards’ monitoring incentives for compliance. Directors in theory face liability for compliance oversight failures, but only if so egregious as to amount to bad faith. We argue that this standard of liability, established in an era before ubiquitous stock-based compensation for both managers and directors, has now become too lax.
We propose more assertive directors’ liability for compliance failures, limited in quantum to a proportionate clawback of stock-based pay. This would add power to the alignment of directors’ interests with those of shareholders – directors would stand to lose more than just a decrease in the value of their stock in the event of a compliance failure – but limiting liability in this way would avoid pushing boards to overinvest in compliance. We outline ways in which this proposal could be implemented either by shareholder proposals or judicial innovation