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Charities in Politics: A Reappraisal
Get PDFFederal law significantly limits the political activities of charities, but no one really knows why. In the wake of Citizens United, the absence of any strong normative grounding for the limits may leave the rules vulnerable to constitutional challenge. This Article steps into that breach, offering a set of policy reasons to separate politics from charity. I also sketch ways in which my more-precise exposition of the rationale for the limits helps guide interpretation of the complex legal rules implementing them.
Any defense of the political limits begins with significant challenges because of a long tradition of scholarly criticism of them. Critics of the limits suggest that the “market failures” that justify tax subsidies for charity also afflict group efforts to monitor politicians and organize politically, so that the subsidy should extend to cover those activities. These claims, though, overlook a series of additional issues suggested by transaction cost economics and other aspects of economic theory.
Most significantly, even if lobbying and electioneering should be subsidized, it does not follow that these functions should be carried out by charities. I argue that combining politics with charity produces a set of diseconomies of scope, including higher agency costs, diminished “warm glow” from giving, and greater inframarginality of deduction recipients. In addition, I argue that the economically ideal tools for reaching the socially optimal levels of charity and lobbying are incompatible with one another. While there are also off-setting gains from the combination, many of these gains further exacerbate the diseconomies
The Solicitor General and Confession of Error
Get PDFConfessions of error have a long history. From the very beginning of the Solicitor General\u27s position, we have had confessions of error.
All Solicitors General-it doesn\u27t matter whether they are appointed by a Republican or a Democrat-have confessed error, roughly at the pace of two to three times per Supreme Court term
The Rhetoric of Email in Law Practice
Get PDFThis article responds to and appears alongside an article by Professor Kirsten Davis in the December 2013 issue of the Oregon Law Review. An interesting debate has arisen among legal writing faculty with respect to the primary form of communication today between attorneys, and between attorneys and clients. Although most legal writing faculty agree that teaching traditional memoranda continues to have pedagogical benefits for first-year students, there is disagreement on how to conceptualize and teach the use of email memoranda in law practice. Professor Davis argues that to think of and label “email memoranda” as something different from traditional memoranda is misguided. In contrast, this article argues that email memos are indeed different—that the medium of email has altered the nature of the message (as Marshall McLuhan might say). In other words, the process of writing email in the context of a conversation changes both the format and the nature of legal analysis. This author also believes that the question for legal writing faculty is not whether to teach traditional memoranda or email analysis but how to teach both well to prepare law students for the real world of law practice
“[This] I Know from My Grandfather”: The Battle for Admissibility of Indigenous Oral History as Proof of Tribal Land Claims
Get PDFA major obstacle indigenous land claimants must face is the application of federal evidentiary rules, like the hearsay doctrine, which block the use of oral history to establish legal claims. It is often oral history and stories that tribes rely upon as evidence to support their claims, reducing substantially the likelihood of a tribe prevailing. Indigenous oral history presents unique challenges to judges when faced with its admissibility. Canadian courts have largely overcome these challenges by interpreting evidentiary rules liberally, in favor of the aborigines. As such, Canadian aborigines have enjoyed greater land claim success than indigenous claimants in the United States, raising the question why United States courts do not follow the Canadian example. After examining the evidentiary strengths and weaknesses of indigenous oral history and the barriers posed to its admissibility in court, this article finds the answer is the willingness of Canada to both recognize the harm done to aboriginal peoples during the country\u27s colonial history and to make amends by opening the courts to these claims
Reflections on Sexual Liberty and Equality: Through Seneca Falls and Selma and Stonewall
Get PDFThis Essay uses the opportunity to examine Roe v. Wade forty years after it was decided and Lawrence v. Texas ten years after it was decided as a platform from which to analyze the status of the civil rights paradigm in American law. A comparison of the two decisions illustrates an important and new point about how civil rights law is deployed to achieve very different goals
Law, Liberty and the Rule of Law (in a Constitutional Democracy)
Get PDFIn the hunt for a better--and more substantial--awareness of the “law,” The author intends to analyze the different notions related to the “rule of law” and to criticize the conceptions that equate it either to the sum of “law” and “rule” or to the formal assertion that “law rules,” regardless of its relationship to certain principles, including both “negative” and “positive” liberties. Instead, he pretends to scrutinize the principles of the “rule of law,” in general, and in a “constitutional democracy,” in particular, to conclude that the tendency to reduce the “democratic principle” to the “majority rule” (or “majority principle”), i.e. to whatever pleases the majority, as part of the “positive liberty,” is contrary both to the “negative liberty” and to the “rule of law” itself
Proportionality in Constitutional and Human Rights Interpretation
Get PDFIn this article the author, in a context in which principles and the principle of proportionality are at the heart not only of jurisprudence but also of constitutional and human rights interpretation, claims that when there were those ready to raise the hand to declare a unanimous winner, some critics and skeptics appeared. In addition, to the traditional objections, they worry that proportionality invites to doing unnecessary balancing between existing rights, inventing new rights out of nothing at all (in detriment of those already well-established ones), and even worse in doing so balancing some rights away. In order to answer to such objections and to reject them, as well as to reinforce the importance of this development, the author: first, revisits the constitution of principles and of the principle of proportionality, which per definitio contradicts each one of this objections; and, then, restates the constitution of the principle of proportionality as a principle of principles not only in constitutional and human rights interpretation but also in legislation, including constitutional reformation, and adjudication
Drones and Cognitive Dissonance
Get PDFThere’s something about drones that makes sane people crazy. Is it those lean, futurist profiles? The activities drone technologies enable? Or perhaps it’s just the word itself–drone–a mindless, unpleasant, dissonant thrum. Whatever the cause, drones seem to produce an unusual kind of cognitive dissonance in many people.
Some demonize drones, denouncing them for causing civilian deaths or enabling long-distance killing, even as they ignore the fact that the same (or worse) could be said of many other weapons delivery systems. Others glorify them as a low-cost way to “take out terrorists,” despite the strategic vacuum in which most drone strikes occur. Still others insist that US drone policy is just “business as usual,” despite the fact that these attacks may undermine US foreign policy goals while creating an array of new problems.
It is worth taking a closer look at what is and is not new and noteworthy about drone technologies and the activities they enable. Ultimately, “drones” as such present few new issues—but the manner in which the US has been using them raises grave questions about their strategic efficacy and unintended consequences. In fact, the legal theories used to justify many US drone strikes risk dangerously hollowing out the rule of law itself
“Fine Distinctions” in the Contemporary Law of Insider Trading
Get PDFWilliam Cary’s opinion for the SEC in In re Cady, Roberts & Co. built the foundation on which the modern law of insider trading rests. This paper—a contribution to Columbia Law School’s recent celebration of Cary’s Cady Roberts opinion, explores some of these—particularly the emergence of a doctrine of “reckless” insider trading. Historically, the crucial question is this: how or why did the insider trading prohibition survive the retrenchment that happened to so many other elements of Rule 10b-5? It argues that the Supreme Court embraced the continuing existence of the “abstain or disclose” rule, and tolerated constructive fraud notwithstanding its new-found commitment to federalism—which I call the (fictional) “Cary-Powell compromise”—because it accepted the central premise on which the expressive function of insider trading regulation is based: manifestations of greed and lack of self-restraint among the privileged, especially fiduciaries or those closely related to fiduciaries, threaten to undermine the official identity of the public markets as open and fair. But enough time may have passed that we may have lost sight of the compromise associated with this fiction and started acting as if insider trading really is the worst kind of deceit. The result is pressure on doctrine to expand, using anything plausible in the 10b-5 toolkit. The aim is to tie this concern more clearly to the uneasy deceptiveness of insider trading, first using somewhat familiar examples such as the debate over whether possession or use is required for liability and the supposed overreach of Rule 10b5-2. Each of these settings brings us back to the centrality of intent, reminding us that the Cary-Powell compromise has in mind a form of purposefulness that is closely tied to greed and opportunism, making insider trading a sui generis form of securities fraud. That takes us to the most jarring recent development in insider trading law, the emergence (particularly in SEC v. Obus) of recklessness as an alternative basis for liability
The Interpretation-Construction Distinction in Patent Law
Get PDFThe ambiguity of claim language is generally considered to be the most important problem in patent law today. Linguistic ambiguity is believed to cause tremendous uncertainty about patent rights. Scholars and judges have accordingly devoted enormous attention to developing better linguistic tools to help courts understand patent claims.
In this article, we explain why this diagnosis is fundamentally wrong. Claims are not often ambiguous, and linguistic ambiguity is not a major cause of the uncertainty in patent law today. We shall explain what really causes the uncertainty in patent rights, how the erroneous diagnosis of linguistic ambiguity has led the literature off-track, and what will get us back on track to solving the uncertainty problem