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The Law\u27s Own Virtue
Get PDFThe paper offers a new account of the rule of law, revising my previous view, and criticising some alternatives. It focuses on the rule of law\u27s aim to avoid arbitrary government, and on its relation to the essential functions of government. The rule of law requires that government action will manifest an intention to protect and advance the interests of the governed. As such it is almost a necessary condition for the law\u27s ability to meet other moral demands, and it facilitate coordination and cooperation internally and internationally
Things Have Changed (or Have They?): Tariff Protection and Environmental Concerns in the WTO
Get PDFThis paper considers the APEC and proposed EGA agreements which grant tariff concession in favor of green goods. We find that the practical significance of the APEC agreement should not be overestimated as it involves modest tariff concessions over a subset of goods which are not heavily traded. Still, these agreements involve a paradigm shift to the extent that they use tariffs concessions negotiated on a plurilateral basis as a policy instrument to meet public policy concern, instead of making market access conditional on meeting national regulations. We model the mechanism through which these tariff preferences provide incentives to change production in favor of green goods in exporting countries and highlight the challenges that the implementation of these agreements involve
Studying the New Civil Judges
Get PDFWe know very little about the people and institutions that make up the bulk of the United States civil justice system: state judges and state courts. Our understanding of civil justice is based primarily on federal litigation and the decisions of appellate judges. Staggeringly little legal scholarship focuses on state courts and judges. We simply do not know what most judges are doing in their day-to-day courtroom roles or in their roles as institutional actors and managers of civil justice infrastructure. We know little about the factors that shape and influence judicial practices, let alone the consequences of those practices for courts, litigants, and the public. From top to bottom, we can describe and theorize about our existing civil justice system in only piecemeal ways. Given legal scholarship\u27s near complete focus on federal civil courts, the stories we tell about the civil justice system may be based on assumptions and models that only apply in the rarefied world of federal court. Meanwhile, state judges and courts – which handle ninety-nine percent of all civil cases – are ripe for theoretical and empirical exploration.
In response, we call for more research aimed at increasing our understanding of state civil courts and judges and offer a theoretical framework to support this work, one that reflects how state courts differ from federal courts. This framework is grounded in a core fact of American civil justice, one both easily observed and largely overlooked: the majority of parties in state civil courts are unrepresented. Given this new pro se reality, our theoretical framework identifies four novel assumptions to guide future research: (1) the adversary process is disappearing; (2) most state court business is still conducted through in-person interactions between judges and parties; (3) the judicial role is ethically ambiguous in pro se cases; and (4) a largely static body of written law has not kept pace with the evolving and dynamic issues facing state courts. Building on the growth of empiricism and empirically grounded theory in traditional legal scholarship and access to justice research, we call on scholars to develop theory and gather data to map the new reality of civil justice and judging in America, and suggest questions to guide future research
Remedies in the UCC: Some Critical Thoughts
Get PDFI thank the conference organizers and the law review for giving me the opportunity to vent some of my frustrations with the Uniform Commercial Code (UCC). I have expressed my concerns with the Code’s overreliance on “custom and usage” elsewhere, and will not pursue that further here. Nor will I bemoan the Code’s invocation of good faith to undo the parties’ balancing of flexibility and reliance. I will confine my discussion to contract remedies. But I have to begin by noting one section I simply do not understand. Why on earth would the Code drafters in § 2–718(2)(b) have required restitution of nonrefundable deposits in excess of $500? A standard that undid “unreasonable” deposits might conceivably make some sense, but a price fixed in 1965 (when the price level has increased more than 500%) is daft
Reckoning Contract Damages: Valuation of the Contract as an Asset
Get PDFWhen a contract is breached the law in most jurisdictions provides some version of the aphorism that the non-breaching party should be made whole. Application of the aphorism has proven problematic, particularly for anticipatory repudiations. This paper argues for a general principle that should guide application – the contract is an asset and the problem is one of valuation of the change in value of that asset at the time of the breach. This provides a framework that will help clear up some conceptual problems in damage assessment. The focus is on direct damages, not consequential damages.
The paper begins with the simplest case in which the breach occurs at the time of performance. Even in that case there is some controversy as to whether post-breach facts (e.g., changes in market conditions) should be taken into account. In the United States, for instance, some commentators argue that there is a conflict between UCC §2-706 (cover) and 2-708(1) (contract/market differential). The conflict is resolved if, instead of viewing the two as alternatives, we view cover as evidence of the value at the time of the breach.
Long-term contracts present two different issues, the breach of a single installment and the anticipatory repudiation of a contract with many years yet to run. The latter problem is exacerbated if the contract includes such complicating factors as take-or-pay clauses, price adjustment mechanisms, and early termination options. The value of the contract at the time of the repudiation would reflect both the expected future stream of income (lost profits) and the efforts of the counterparty to adapt if performance ceased (mitigation). Cases of this sort often arise in international arbitrations. A State might, for example, grant a concession to exploit an oil field and, after the development has been successful, it could try to recapture some, or all, of the value, perhaps by imposing taxes or by an out-and-out expropriation. The basic damage principle – valuation at the time of the repudiation – remains the same
The Caroline Affair in the Evolving International Law of Self-Defense
Get PDFThe Caroline incident – an 1837 raid by British Canadian militia across the Niagara River border to sink an American steamboat being used by Canadian insurgents – is well-known to many international lawyers. United States Secretary of State Daniel Webster’s resulting correspondence with British representative Lord Ashburton is often cited today as a key authority on customary international self-defense standards. University of Ottawa professor Craig Forcese has produced a valuable new history and analysis of that event, its legal context, and its continuing influence: Destroying the Caroline: The Frontier Raid that Reshaped the Right to War. As explained in this review, the book corrects some misunderstandings about the incident and shows its continuing relevance to contemporary international legal debates about military force. It also helps in understanding this period of U.S. foreign relations law, especially with regard to powers of war and peace
Learned Hand\u27s Seven Other Ideas about the Freedom of Speech
Get PDFI say “other” because, regarding the freedom of speech, Learned Hand has suffered the not uncommon fate of having his best ideas either drowned out or credited exclusively to others due to the excessive attention that has been bestowed on one of his lesser ideas. Sitting as a district judge in the case of Masses Publishing Co. v. Patten, Hand wrote the earliest judicial opinion about the freedom of speech that has attained canonical status. He ruled that under the recently passed Espionage Act of 1917, writings critical of government cannot be grounds for imposing criminal punishment or the denial of mailing privileges unless the authors tell their readers it is in their interest or is their duty to violate the law. Hostile criticism very likely to cause harm or intended to do so is not punishable under that statute, he concluded, if it stops short of direct advocacy of law violation. He derived this standard in the guise of statutory interpretation but very little in the text of the law or its history of passage suggested his reading. Rather, to support his preferred test Hand drew upon what he took to be the basic presuppositions of democratic governance, assumed to underlie the enactment of the statute. In subsequent private correspondence, he repeatedly invoked his test as not only implicit in the Espionage Act but also the best interpretation of the First Amendment
Tax Expenditure and the Treatment of Tax Incentives for Investment
Get PDFGovernments use tax expenditures to boost investment, innovation and employment. However, these schemes are largely opaque, costly and often ineffective in reaching their stated goals. They also frequently trigger unwanted side effects. In order to improve the performance of these tools, the authors present three concrete policy proposals: First, governments should increase transparency on tax benefits. G20 members should take the lead on this with frequent and comprehensive tax expenditure reports. Second, G20 governments should improve the design of tax incentives with the aim of minimizing the generation of windfall profits and negative spillover effects within and across (in particular, on poorer) countries. Third, governments should phase out tax expenditures that are environmentally harmful, including tax incentives for fossil fuels and other schemes that promote an unsustainable use of natural resources
The Case Against Passive Shareholder Voting
Get PDFAmerican investors have begun to embrace the reality that academics have been championing for decades — that a broad-based, passive indexing strategy is superior to picking individual stocks or investing in actively managed funds. But there are several reasons to believe that the rise of passive investing will have harmful consequences for firm governance, shareholders, and the economy. First, because passive funds seek only to match the performance of an index — not outperform it — they lack a financial incentive to ensure that each of the companies in their very large portfolios are well-run. Second, passive funds face an acute collective action problem: any investment in improving the performance of a company will benefit all funds that track the index equally, while only the activist fund incurs the costs. Third, governance interventions are especially costly for passive funds, which do not generate firm-specific information as a byproduct of investing and thus must expend additional resources to identify underperforming firms and evaluate interventions proposed by other investors. Such expenditures would undo the cost savings that attracted investors to the passive fund in the first place.
For these reasons, many passive funds are likely to leave company performance to the invisible hand of the marketplace. Even if a fund does choose to intervene, it will rationally adhere to a low-cost, one-size-fits-all approach to governance that is unlikely to be in the company’s best interest. The scope of this problem is potentially immense: as investors continue to flock toward passive investment vehicles, the institutional investors that dominate the passive fund market will increasingly influence and even control the outcome of shareholder interventions — from shareholder votes to those proposed by hedge fund activists — creating widespread economic harm. For that reason, this Article proposes that lawmakers consider restricting passive funds from voting at shareholder meetings. Doing so would reduce the influence of passive funds in governance and also preserve the role of informed investors as a force for managerial discipline