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Egypt\u27s New Constitution: The Islamist Difference
Get PDFThe paper discusses the distributional impact of the rules of the new Egyptian constitution (2012). It specifically addresses the way such rules, substantive and (potentially) procedural, can influence Egyptian law\u27s identity and the underlying relations between the state and individuals and among individuals themselves that such identity implies
Euro Zone Crisis Management and the New Social Europe
Get PDFThis article analyzes the changes in European governance since the beginning of the euro crisis in relation to the project of constructing Social Europe. The article tracks the incorporation of a structural reform agenda originally designed as bailout conditionality for countries on the verge of default into EU economic governance as a strategy for growth. Beyond the contestable grounds of this reform agenda, its adoption by the EU in the mode of crisis management poses serious questions of legitimacy. The new enhanced economic coordination process includes obligatory guidelines in domains under the legislative competence of Member States, such as labor regulation and taxation, under the guise of a technocratic imperative. The article also shows that despite the intensely neoliberal character of the proposed structural reforms, the Commission has foregrounded the protection of Europe’s welfare regimes as a key reason for reform. In reality, such reforms would dramatically alter welfare regimes, emptying out traditional welfarist goals such as the decommodification of labor without appropriate political processes. This article argues that these developments are likely to challenge the already weakened legitimacy of the European Union
The Wages of Crying Judicial Restraint
Get PDFFive Justices voted to affirm the proposition that the Constitution creates a government of limited and enumerated powers and that the courts will enforce those limits. To understand why this victory was possible, it is important to understand that there are not just two versions of federalism, pre‐New Deal and post‐New Deal. There is also a third version. The failure to recognize the third version goes a long way to explain why most of my academic colleagues predicted that the right would have no chance to prevail in our constitutional challenge to the individual insurance mandate.
The first version of federalism is the pre‐New Deal version. This version affirms that the Constitution established a national government of limited and enumerated powers, that those powers should be interpreted according to their original meaning, and that much of what the federal government tried to do before the New Deal, and did during the New Deal and after, is unconstitutional.
The post‐New Deal vision of federalism has been interpreted by progressives, quite beyond what the Court has actually said, as repudiating the idea that the Constitution enumerates certain limited congressional powers and that these limits are to be enforced by the courts. This progressive vision of the post‐ New Deal federalism essentially says that Congress has the plenary power to legislate as it will with respect to the national economy.9 Put another way, the Commerce and Necessary and Proper Clauses combine to create a “National Problems Power” vested in Congress.
Because most law professors held this vision of the New Deal, it came as quite a shock to them when the Rehnquist Court established the New Federalism. The New Federalism established the proposition that there were limits that were compelled by what Chief Justice Rehnquist referred to as “first principles” of constitutional government. That these limits would be enforced by the Court seemingly rejected and repudiated the progressive vision of the post‐New Deal constitutionalism that, up to that point, had seemed orthodoxy
Reassessing the Citizens Protection Act: A Good Thing It Passed, and a Good Thing It Failed
Get PDFThe Citizens Protection Act (CPA) of 1998 has always been a lightening rod for criticism, and it remains so today. This article reassesses the CPA’s perceived inadequacies in light of how it has actually affected (or, not affected) federal prosecutors’ involvement in criminal investigations. The article takes issue with the critics and demonstrates that the CPA succeeded where it should have, failed where it should have, and left us—however inadvertently—with a remarkably coherent and consistent approach to regulating federal prosecutors’ involvement in criminal investigations regardless of whether a suspect retains counsel early in the proceedings.
The CPA requires federal prosecutors to follow state rules of professional conduct “to the same extent and in the same manner” as all other lawyers. The CPA was intended to—and did—nullify a U.S. Department of Justice (DOJ) declaration that unilaterally exempted federal prosecutors from much of the “no-contact” rule, which prohibits a lawyer in a matter from communicating with the client of another lawyer in the matter. The CPA was also intended to—but did not—require federal prosecutors to comply with various state interpretations of the no-contact rule that might have restricted their ability to participate in both covert and overt communications with represented criminal suspects. It is a good thing the CPA passed because DOJ’s assertion of authority over the no-contact rule for its own lawyers would inevitably have undermined public confidence in federal prosecutors’ commitment to fair and ethical investigatory processes. By the same token, it is a good thing that the CPA failed because broadly depriving DOJ of federal prosecutors’ involvement in communications with represented suspects would have substantially hindered criminal investigations for no good reason
Advancing the Right to Health Through Global Organizations: The Potential Role of a Framework Convention on Global Health
Get PDFOrganizations, partnerships, and alliances form the building blocks of global governance. Global health organizations thus have the potential to play a formative role in determining the extent to which people are able to realize their right to health.
This article examines how major global health organizations, such as WHO, the Global Fund to Fight AIDS, TB and Malaria, UNAIDS, and GAVI approach human rights concerns, including equality, accountability, and inclusive participation. We argue that organizational support for the right to health must transition from ad hoc and partial to permanent and comprehensive.
Drawing on the literature and our knowledge of global health organizations, we offer good practices that point to ways in which such agencies can advance the right to health, covering nine areas: 1) participation and representation in governance processes; 2) leadership and organizational ethos; 3) internal policies; 4) norm-setting and promotion; 5) organizational leadership through advocacy and communication; 6) monitoring and accountability; 7) capacity building; 8) funding policies; and 9) partnerships and engagement. In each of these areas, we offer elements of a proposed Framework Convention on Global Health (FCGH), which would commit state parties to support these standards through their board membership and other interactions with these agencies. We also explain how the FCGH could incorporate these organizations into its overall financing framework, initiate a new forum where they collaborate with each other, as well as organizations in other regimes, to advance the right to health, and ensure sufficient funding for right to health capacity building.
We urge major global health organizations to follow the leadership of the UN Secretary-General and UNAIDS to champion the FCGH. It is only through a rights-based approach, enshrined in a new Convention, that we can expect to achieve health for all in our lifetimes
Advancing the Right to Health Through Global Organizations: The Potential Role of a Framework Convention on Global Health
Get PDFOrganizations, partnerships, and alliances form the building blocks of global governance. Global health organizations thus have the potential to play a formative role in determining the extent to which people are able to realize their right to health.
This article examines how major global health organizations, such as WHO, the Global Fund to Fight AIDS, TB and Malaria, UNAIDS, and GAVI approach human rights concerns, including equality, accountability, and inclusive participation. We argue that organizational support for the right to health must transition from ad hoc and partial to permanent and comprehensive.
Drawing on the literature and our knowledge of global health organizations, we offer good practices that point to ways in which such agencies can advance the right to health, covering nine areas: 1) participation and representation in governance processes; 2) leadership and organizational ethos; 3) internal policies; 4) norm-setting and promotion; 5) organizational leadership through advocacy and communication; 6) monitoring and accountability; 7) capacity building; 8) funding policies; and 9) partnerships and engagement. In each of these areas, we offer elements of a proposed Framework Convention on Global Health (FCGH), which would commit state parties to support these standards through their board membership and other interactions with these agencies. We also explain how the FCGH could incorporate these organizations into its overall financing framework, initiate a new forum where they collaborate with each other, as well as organizations in other regimes, to advance the right to health, and ensure sufficient funding for right to health capacity building.
We urge major global health organizations to follow the leadership of the UN Secretary-General and UNAIDS to champion the FCGH. It is only through a rights-based approach, enshrined in a new Convention, that we can expect to achieve health for all in our lifetimes
The Protected Profits Benchmark: Responses to Comments
Get PDFIn my earlier article, I proposed the “Protected Profits Benchmark” (PPB) price standard for determining whether or not a vertically integrated monopolist is engaged in a refusal to deal or price squeeze in violation of Section 2 of the Sherman Act. The PPB would be used where market benchmarks do not exist or do not apply. Violating the PPB price involves profit-sacrifice, which suggests anticompetitive animus. When products are homogeneous, a wholesale price that violates this price standard would exclude an equally efficient entrant. As a result, there will be less competition in the downstream (output) market in which the entrant is trying to compete. This article responds to several Comments. While the Commentors all agree that refusals to deal and price squeezes can be determined by the use of some price benchmark, contrary to the Court’s suggestion in Trinko and linkLine, the Commentors have raised a number of issues. These include whether the PPB is the proper standard, whether it is administrable, and whether it should be adjusted for particular fact situations. The Response article explains either how the Commentors’ concerns can be incorporated into the standard or why they should not be incorporated
Social Enterprise: Who Needs It?
Get PDFState statutes authorizing firms to pursue mixtures of profitable and socially-beneficial goals have proliferated in the past five years. In this invited response essay, I argue that for one large class of charitable goals the so-called “social enterprise” firm is often privately wasteful. While the hybrid form is a bit more sensible for firms that combine profit with simple, easily monitored social benefits, existing laws fail to protect stakeholders against opportunistic conversion of the firm to pure profit-seeking. Given these failings, I suggest that social enterprise’s legislative popularity can best be traced to a race to the bottom among states competing to siphon away federal tax dollars for local businesses. Not all hybrid forms inevitably are failures, however. For example, the convertible debt instruments proposed by Brakman Reiser and Dean -- the inspiration for this response -- offer a promising route forward for “cold glow” firms wishing to promise to clean up some easily-measured but harmful business practices
Merger Settlement and Enforcement Policy for Optimal Deterrence and Maximum Welfare
Get PDFMerger enforcement today relies on settlements more than litigation to resolve anti-competitive concerns. The impact of settlement policy on welfare and the proper goals of settlement policy are highly controversial. Some argue that gun-shy agencies settle for too little while others argue that agencies use their power to delay to extract over-reaching settlement terms, even when mergers are not welfare-reducing. This article uses decision theory to throw light on this controversy. The goal of this article is to formulate and analyze agency merger enforcement and settlement commitment policies in the face of imperfect information, litigation costs, and delay risks by the merging parties, agencies, and the courts. The article explains why limiting the goal of merger enforcement and agency settlement policy simply to avoiding welfare harms (but no more) is flawed as a matter of both law and policy and would compromise deterrence. The decision-theoretic analysis distinguishes two types of agency commitment policies: a short-run optimal policy that focuses only the specific merger proposal being evaluated; a long-run optimal policy that takes into account effects on future mergers and deterrence goals. The short-run optimal policy may lead to some welfare-reducing settlements by a rationally gun-shy agency; settlement demands for weakly welfare-enhancing merger proposals, what might be called “exacting tribute;” and “anti-deterrence” effects by merging firms proposing some mergers with greater welfare harm in order to increase settlement bargaining leverage. In contrast, a disciplined long-run optimal policy would clear all welfare-enhancing mergers as-proposed; forgo negative welfare settlements despite the risk of losing in court, but instead demand settlements on welfare-reducing merger proposals sufficient to lead to strict welfare increases (not just welfare-neutrality), relative to no merger; and avoid anti-deterrence by demanding larger settlements for more harmful mergers. Deterrence also would be improved if last-minute voluntary divestiture agreements were not treated as part of the merger agreement evaluated by the court, contrary to the approach taken in Arch Coal and other cases
2013 Report on the State of the Legal Market
Get PDFAs we enter 2013, the legal market continues in the fifth year of an unprecedented economic downturn that began in the third quarter of 2008. At this point, it is becoming increasingly apparent that the market for legal services in the United States and throughout the world has changed in fundamental ways and that, even as we work our way out of the economic doldrums, the practice of law going forward is likely to be starkly different than in the pre-2008 period. The challenge for lawyers and law firms is to understand the ways in which the legal market has shifted and to adjust their own strategies, expectations, and ways of working to conform to the new market realities. While there is certainly evidence that some firms and lawyers have begun to make these adjustments, many others seem to be in denial, believing (or perhaps hoping) that the world will go back to normal as soon as demand for legal services begins to grow again.
Legend has it that in 1519, when he and his cohort of some 500 soldiers and 100 sailors landed on the shores of the Yucatan intent on conquering the large and powerful Aztec empire, Spanish conquistador Hernando Cortez promptly ordered his men to burn the ships. Cortez knew that, unless more tempting alternatives were removed, it would be difficult to motivate his men to take on an empire with a large army that had been in power for more than six centuries. Hence, his bold and decisive order.
The legal market today is an increasingly difficult and challenging environment, one that calls for clear thinking, strategic focus, and flexibility in addressing rapidly changing realities. To an unfortunate extent, however, many lawyers and law firms seem stuck in old models–traditional ways of thinking about law firm economics and structure, legal work processes, talent management, and client relationships–that are no longer well suited to the market environment in which they compete. Perhaps it\u27s time for us, like Cortez, to burn the ships–to force ourselves to think outside our traditional models and, however uncomfortable it might be, to imagine new and creative ways to deliver legal services more efficiently and build more sustainable models of law firm practice.
This report describes the trends that have been observed in the legal market in 2012, exploring the longer term implications of those trends for the future, and suggesting some ways in which lawyers and law firms can better position themselves to deal with new emerging market realities