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Promise Etc.
Get PDFThis Article examines the moral obligations contractual agreements generate. It distinguishes a narrow sense of promise, central to autonomy theories, according to which to promise is to communicate an intention to undertake an obligation by the very communication of that intention. Not every agreement involves promises in this sense. Yet nonpromissory agreements too commonly generate moral obligations. And even when a party promises to perform, her promise need not be the only reason for her moral obligation to do so. Other possible reasons include reliance, an invitation to trust, implicit or explicit, principles of reciprocity, and the harm that nonperformance might cause the parties\u27 relationship. This description of the moral landscape of contractual agreements complicates the project of finding a moral basis for contract law\u27s duty-imposing function. The Article applies it to critically assess some recent arguments claims the relationship between contract and promise from Michael Pratt, Jody Kraus and Seana Shiffrin
Anonymous Withholding Agreements and the Future of International cooperation in Taxing Foreign Financial Accounts : Testimony before the Finance Committee of the German Bundestag, September 24, 2012 (Statement by Associate Professor Itai Grinberg, Geo. U. L. Center)
Get PDFChairwoman Reinemund and members of the Finance Committee, this testimony will make three key points:
• Automatic information exchange is superior to anonymous withholding for the purpose of combating tax evasion involving the use of foreign financial accounts.
• German ratification of the Swiss-German anonymous tax withholding agreement would stifle the emergence of a multilateral automatic information exchange system. As a result, Germany would be less able to address its own concerns with tax evasion through foreign accounts over the medium term. By ratifying this agreement, Germany would also slow the development of a multilateral system that would allow many other countries around the world to effectively address their concerns with tax evasion through foreign accounts.
• Switzerland has in effect agreed to automatic information exchange with the United States. Germany could pressure Switzerland unilaterally, multilaterally, and through the EU for a similar agreement
Foreword: Academic Influence on the Court
Get PDFThe months leading up to the Supreme Court’s blockbuster decision on the Affordable Care Act (ACA) were characterized by a prodigious amount of media coverage that purported to analyze how the legal challenge to Obamacare went mainstream. The nation’s major newspapers each had a prominent story describing how conservative academics, led by Professor Randy Barnett, had a long-term strategy to make the case appear credible. In the first weeks after the ACA’s passage, the storyline went, the lawsuit’s prospects of success were thought to be virtually nil. Professor (and former Solicitor General) Charles Fried stated that he would “eat a hat...made of Kangaroo skin” if the challenge were successful. But, as the case went through the system, the predictions evolved to the point where many believed that the ACA would be struck down. A (rapidly diminishing) group of observers maintained their prediction that the ACA would be upheld, but even then, most of those individuals focused exclusively on Commerce Clause grounds.
In the midst of this speculation came an important article by Robert Cooter and Neil Siegel arguing that the ACA should be upheld as a valid exercise of the tax power. They argued—in a draft placed online two months before the oral argument in the case—that there was a key distinction between penalties and taxes. Applying that framework, they argued that the ACA was not a penalty because penalties have the effect of preventing conduct (thereby producing little revenue) and the ACA’s minimum cover-age provision, by contrast, was projected to raise oodles of revenue. It is fair to say that this article had little to no impact on the media predictions that were being bandied about as the case wound its way through the Supreme Court. The Commerce Clause remained everyone’s focus
Emergency Preparedness and Public Health: The Lessons of Hurricane Sandy
Get PDFWhen Hurricane Sandy hit downtown Manhattan, three neighboring hospitals each made different decisions about when to evacuate. Across the metro region, more than five hospitals and over 20 nursing and assisted living facilities were evacuated, making this the central public health challenge of this calamitous event. It is a familiar story—a super storm comes ashore, infrastructure is overwhelmed, and healthcare facilities evacuate patients, with major delays in returning to normal functioning. Afterwards, policy makers evaluate lessons learned for the next disaster, but similar missteps are often repeated.
Although not identical, it is instructive to compare Hurricane Katrina with the still unfolding events of Sandy. Unlike in Katrina, New York hospitals had more detailed emergency plans. What seemed to be missing, however, were clear and consistent criteria to guide evacuation decisions. Evacuation decisions are complex—a decision to evacuate prematurely places patients at risk, while waiting too long can have devastating consequences. Public officials, in collaboration with facilities, should decide whether to shelter in place or risk transfer of fragile patients. Governors should consider early emergency declarations, including request for a formal “public health emergency declaration”, to reduce legal concerns and regulatory constraints. Federal, state, and municipal authorities can better prepare for the next disaster and have a duty to do so
Emergency Preparedness and Public Health: The Lessons of Hurricane Sandy
Get PDFWhen Hurricane Sandy hit downtown Manhattan, three neighboring hospitals each made different decisions about when to evacuate. Across the metro region, more than five hospitals and over 20 nursing and assisted living facilities were evacuated, making this the central public health challenge of this calamitous event. It is a familiar story—a super storm comes ashore, infrastructure is overwhelmed, and healthcare facilities evacuate patients, with major delays in returning to normal functioning. Afterwards, policy makers evaluate lessons learned for the next disaster, but similar missteps are often repeated.
Although not identical, it is instructive to compare Hurricane Katrina with the still unfolding events of Sandy. Unlike in Katrina, New York hospitals had more detailed emergency plans. What seemed to be missing, however, were clear and consistent criteria to guide evacuation decisions. Evacuation decisions are complex—a decision to evacuate prematurely places patients at risk, while waiting too long can have devastating consequences. Public officials, in collaboration with facilities, should decide whether to shelter in place or risk transfer of fragile patients. Governors should consider early emergency declarations, including request for a formal “public health emergency declaration”, to reduce legal concerns and regulatory constraints. Federal, state, and municipal authorities can better prepare for the next disaster and have a duty to do so
Institutionalizing Democracy in Africa: A Comment on the African Charter on Democracy, Elections and Governance
Get PDFThis article provides an exegesis of the recently entered-into-force African Charter on Democracy, Elections and Governance. Democracy has a decidedly mixed history in Africa and, despite a concerted effort by the African Union (AU), it has made only halting inroads in those states that are nondemocratic or struggling to consolidate democracy. That may change as more states ratify and implement the Charter, a comprehensive regional attempt to promote, protect, and consolidate democracy that entered into force in February 2012. This Charter, the culmination of two decades of African thinking on how democracy should develop on the continent, represents the AU’s attempt to institutionalize principles of good governance and democratic ideals. Although hurdles remain on Africa’s road to democratic development, including poverty, illiteracy, and corruption, the Charter provides a means to address these stubborn problems. Whether it will succeed will depend on state implementation of the obligations undertaken by ratification of the Charter, as well as the African Union’s own commitment to ensuring observation of the Charter’s key provisions. If the AU and its member states do fully implement and practically observe the Charter’s obligations, then the prospects for democratic governance in Africa have a bright future
Libya: A Multilateral Constitutional Moment?
Get PDFThe Libya intervention of 2011 marked the first time that the UN Security Council invoked the “responsibility to protect” principle (RtoP) to authorize use of force by UN member states. In this comment the author argues that the Security Council’s invocation of RtoP in the midst of the Libyan crisis significantly deepens the broader, ongoing transformation in the international law system’s approach to sovereignty and civilian protection. This transformation away from the traditional Westphalian notion of sovereignty has been unfolding for decades, but the Libyan case represents a further normative shift from sovereignty as a right to sovereignty as a responsibility. This significant normative moment demonstrates how far international law has traveled and also where it has not yet traveled.
The Libyan case was propelled by a mass movement in Libya, in the region, and ultimately in the international community, which mobilized Security Council action, relying on RtoP, to protect civilians in the face of brutality. In response to Libyan leader Muammar Qaddafi’s threat to slaughter his own people amid the “Arab Spring” of 2011, the Security Council authorized, inter alia, a limited military intervention to protect Libyan civilians, invoking RtoP. The assumption under RtoP is that individual states have primary responsibility for civilian protection and that, as a backstop, the international community has subsidiary responsibility for civilian protection by preventing and rapidly responding to genocide, war crimes, ethnic cleansing, and crimes against humanity. Military intervention pursuant to RtoP is, against that background, an option of last resort, when the other, more modest measures preferred as initial steps have failed (as discussed further in part II). Significantly, in the Libyan case, it was the Libyan people—as represented by an opposition movement (including numerous defecting government officials) that was demanding a more representative government—who called for Security Council intervention to mobilize an effective civilian-protection effort
The Battle Over Taxing Offshore Accounts
Get PDFThe international tax system is in the midst of a contest between automatic information reporting and anonymous withholding models for ensuring that nations have the ability to tax offshore accounts. At stake is the extent of many countries’ capacity to tax investment income of individuals and profits of closely held businesses through an income tax in an increasingly financially integrated world.
Incongruent initiatives of the European Union, the Organisation for Economic Cooperation and Development (OECD), Switzerland, and the United States together represent an emerging international regime in which financial institutions act to facilitate countries’ ability to tax their residents’ offshore accounts. The growing consensus that financial institutions should act as cross-border tax intermediaries represents a remarkable shift in international norms that has yet to be recognized in the academic literature.
The debate, however, is about how financial institutions should serve as cross-border tax intermediaries, and for which countries. Different outcomes in this contest portend starkly different futures for the extent of cross-border tax administrative assistance available to most countries. The triumph of an automatic information reporting model over an anonymous withholding model is key to (1) allowing for the taxation of principal, (2) ensuring that most countries are included in the benefit of financial institutions serving as cross-border tax intermediaries, (3) encouraging taxpayer engagement with the polity, and (4) supporting sovereign policy flexibility, especially in emerging and developing economies. This Article closes with proposals to help reconcile the emerging automatic information exchange approaches to produce an effective multilateral system
Affordable Care Act Litigation: The Supreme Court and the Future of Health Care Reform
Get PDFIn Florida v. HHS, a lawsuit brought on behalf of 26 states challenging the constitutionality of the Patient Protection and Affordable Care Act (ACA), the Supreme Court will determine the future direction of health care reform in the United States. During the unprecedented 5-1/2 hours of oral arguments, the Court will hear 4 issues: the individual purchase mandate, severability, the Medicaid expansion and the Anti-Injunction Act.
The states challenging the ACA maintain that the purchase mandate uniquely penalizes individuals for failing to purchase insurance. Uninsured individuals, however, rarely do nothing. Instead, they self-insure, rely on family, and cost-shift to hospitals, the insured, and tax payers. Because most uninsured people will eventually require uncompensated care, they impose costs on everyone through higher taxes and insurance premiums. Further, although the ACA’s mandate is unusual, it is not unprecedented. Mandatory worker contributions to Medicare, for example, are a compelled purchase of health insurance. The necessary and proper clause, which permits Congress to pass laws rationally related to the exercise of federal powers, may be the best argument in favor of the mandate because the mandate is necessary for the other insurance market reforms to work.
If the Court were to strike down the mandate, it would then have to determine whether the mandate is severable from the rest of the ACA. Although the ACA did not explicitly state that if part of the act were deemed unconstitutional the rest would survive, most ACA reforms are severable because they are unrelated to the mandate, such as funding for public health and community health centers. The more difficult question is whether the mandate is so intertwined with the ACA’s still unimplemented market reforms that the Court must strike them down.
The Court will also review the constitutionality of expanding Medicaid to all individuals with household incomes below 138% of the federal poverty level. The states argue that Medicaid expansion is unduly coercive because they could lose all Medicaid funding and not just the funding related to the expansion. The Court, however, is unlikely to uphold the coercion theory because state participation in Medicaid has always been optional and some states have openly discussed exercising their option to discontinue the program.
Finally, the Court will hear technical arguments concerning the Anti-Injunction Act (AIA), which prohibits lawsuits “for the purpose of restraining the assessment or collection of any tax.” The Court is unlikely to invoke the AIA because neither the administration nor the states contend that it applies.
The ACA will achieve near universal coverage, something that seemed unimaginable just a short time ago. Health reform envisages a social contract in which everyone shares the cost, recognizing that virtually everyone will become ill one day. The ACA and its individual mandate are not unjustified limits on freedom, but rather are vital to a decent society
Animus Thick and Thin: The Broader Impact of the Ninth Circuit Decision in \u3ci\u3ePerry V. Brown\u3c/i\u3e
Get PDFThis essay is a response to an article by: Eskridge Jr., William N., The Ninth Circuit\u27s Perry Decision and the Constitutional Politics of Marriage Equality, in 64 Stan. L. Rev. Online 93 (2012).
This essay examines the impact of Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012), the first appellate federal court decision on the constitutional validity of marriage exclusion laws. The author argues that the major contribution of the Perry decision is to illuminate the meaning of animus, a term that is sharply contested in Equal Protection jurisprudence, and to explicate its relationship to standards of review. The Ninth Circuit holds that evidence of animosity toward a disfavored group triggers a heightened rational basis standard of review. The Supreme Court has not yet settled on how to analyze evidence of animus. In his dissent in Romer v. Evans, Justice Scalia ridiculed the idea that believing homosexuality to be immoral could be compared to racial or religious bias. By contrast, in her concurrence in Lawrence v. Texas, Justice O’Connor articulated the principle adopted by the Ninth Circuit in Perry: that laws driven by animus toward a social group are subject to a “more searching” version of rational basis review. The majority of Justices, however, appear to be gunshy about even acknowledging the existence of heightened rational basis review, even though they have been relying on it sub silentio for several decades. The Perry court provides the fullest articulation of it to date.
The Court of Appeals in Perry also takes a new perspective on how courts should assess the validity of popularly enacted initiatives such as Proposition 8. For both proponents and opponents of popular constitutionalism, the gay marriage debates raise the question of whether voters or courts should get the last word in a constitutional democracy when they take polar opposite positions on a minority rights issue. The Perry opinion would impose less a death knell to such initiatives than a set of speed bumps, through which courts would analyze whether a discriminatory provision was the retraction of a right or a failure to extend it, and whether it had a demonstrably legitimate purpose, other than simply the imposition of stigma. In the gay marriage context, the court left open the possibility that limiting marriage to different sex couples could be justified by the desire to discourage “accidental procreation.” However, based on evidence about the campaign to pass Proposition 8, the court found that animus had been the dominant motivation in this case