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Soft Law: The Optimal Legal Framework for Global Financial Regulation
Get PDFThe regulation of global finance comprises an unorthodox legal framework. Unlike other areas of economic regulation or international law, more generally, this framework is not directed through intergovernmental organizations with formal legal status. Moreover, commitments (or best practice standards) made by various regulatory officials are non-binding and subject to significant variation. This departure is especially unique when comparing financial regulation to areas such as international trade law or environmental law.[1]
The purpose of this Paper is to provide a positive analysis explaining the prevalence of this form of “soft” law, and normatively suggest why such a framework is the optimal form of regulation in this arena. In doing so, I first explain the need for financial regulation, the transboundary nature of financial systems, and other unique features endemic to global finance, including the need to account for dynamism, complexity and sovereignty considerations. I compare the financial regulatory framework to the formal treaty-making process used in international environmental law as well as the experiences of the World Trade Organization (WTO). I then address certain criticisms of the current regulatory framework and identify areas where there may be room for improvement, including enhanced administrative law mechanisms and increased participation from the Global South.
[1] This Paper contrasts the global financial regulatory experience to that of international environmental law for several reasons. First, both areas of regulation are transboundary in nature. Climate change, like financial contagion, does not stop at a national border. International environmental law is also a developed area of law—there are thousands of bilateral and multilateral treaties. This Paper also compares global financial regulation to the experiences of international trade law. This comparison is useful considering that both domains concern economic policy as well as the WTO’s oft-mentioned dispute mechanism system
Parents Versus Parens Patriae: The Troubling Legality of Germany\u27s Homeschool Ban and a Textual Basis for Its Removal
Get PDFThe Romeikes, a family from Germany, sought to educate their children in accordance with their religious values. The family observed that no local schools educated children in alignment with their values. In response, the family sought an exemption from Germany’s homeschooling ban. In a string of court cases, Germany refused to accommodate the family’s request, finding that the parents’ right to educate their children in alignment with their values was outweighed by the state’s obligation to educate. With no recourse left in Germany, the parents petitioned the European Court of Human Rights to recognize their right to homeschool according to their values. In Konrad v. Germany, the European Court of Human Rights refused to recognize such a right, finding that Germany’s homeschool ban was within the “margin in appreciation” given to countries for differences in education policy. This decision allowed Germany to pursue harsh enforcement actions against the Romeikes, like forcing them to send their children to public school. Ultimately, the Romeikes fled Germany and sought asylum in the United States. The European Court of Human Rights’ decision is problematic because it departs from the plain meaning of the European Convention on Human Rights. The court’s ruling is also dangerous because it allows governments unparalleled opportunities to indoctrinate future generations by forcing them to attend schools that teach values regulated by the government. The case’s harsh results highlight the troubling legality of Germany’s homeschooling ban. In response, this Comment offers both a textual basis for its removal under the European Convention on Human Rights and policy arguments supporting this result
Coase and Accommodation: A Reply
Get PDFMany years ago, when I was a fresh-faced appointments candidate hoping to teach constitutional law, my dean at USC recommended some reading to ease me into the scholarly flow. One suggestion—which I took—was The Constitution, the Courts, and Human Rights.[1] I never imagined its author would become a mentor, colleague, and friend.
Several years into my first appointment at a law school in the rural South, I received a note from Michael (whom I had not yet met) telling me that, in a recent speech, he’d quoted something I’d published—a small but characteristically generous gesture that meant everything to a young scholar toiling in evident obscurity. Michael helped and encouraged me over the years, in ways large and small; I have watched him do the same for many others. He will leave behind scholars as well as scholarship.
There is, to be sure, plenty of scholarship. It is at once inspiring and humbling to see a scholar so fully commit himself to the same problem through a long and successful career. Michael’s work has made a difference—the most a scholar can ask—by providing moral justifications for human rights in a world seemingly bereft of both. Though I have never gotten used to his very long footnotes, I have learned from the depth of what he writes and the care with which he writes it.
While I am honored to participate in this Festschrift for Michael, I am blessed to be his friend. Some years ago, my son Alex passed away while attending a university where Michael was on the faculty. Nicea and I have never forgotten Michael’s kindness and concern for us and our daughters, then and for years after. He made a difference for us
Huawei Strikes Back: Challenging National Security Decisions Before Investment Arbitral Tribunals
Get PDFDecoding Nondelegation after Gundy: What the Experience in State Courts Tells Us about What to Expect When We\u27re Expecting
Get PDFThe nondelegation doctrine theoretically limits Congress’s ability to delegate legislative powers to the executive agencies that make up the modern administrative state. Yet, in practice, the U.S. Supreme Court has, since the New Deal, shied away from enforcing any limits on congressional delegation. That may change in the near future. In Gundy v. United States, the Court narrowly upheld a delegation, and a dissent signaled deep doubts about the Court’s longstanding “intelligible principle” standard and offered a new framework to replace it. Subsequent events strongly suggest that the Court is poised to move in the direction contemplated by the dissent in Gundy, drawing a line between policy discretion, which cannot be delegated, and authority to fill up details or find facts triggering policies, which can be. Whether observers’ view of the prospect of Court-imposed limits on delegation is apocalyptic or euphoric, virtually everyone expects such limits to be highly consequential.
While these opinions about the nondelegation doctrine are understandable, they are ultimately speculative. This Article offers a more data-driven evaluation of what implementation of the Gundy dissent’s line drawing would portend for administrative law. Using the underexamined laboratory of the nondelegation doctrine in the states, where the doctrine has always had more life than at the federal level, this Article shows that states that adhere closely to the lines drawn by the Gundy dissent are no more or less likely to invalidate statutes passed by state legislatures than states that adhere to the intelligible principle formulation. The lack of a relationship between doctrinal formulation and outcomes suggests we will only know whether a revolution is afoot based on what the Supreme Court actually does over a series of cases, not on what it says it is going to do. Moreover, the research findings suggest significant limitations on the ability of the Gundy dissent’s approach to provide any ex ante guidance to the lower courts, or even future Supreme Courts, about what the nondelegation doctrine prohibits—an observation that suggests significant logistical and institutional problems inherent in the entire project of resuscitating the doctrine
Realizing Diversity, Sustainability, and Stakeholder Capitalism
Get PDFStakeholder capitalism conceives of capitalism with companies maximizing their long-term value, while considering in addition to the interests of their shareholders, also the interests of all their other stakeholders. Examples of such additional stakeholders include customers, employees, communities, creditors, competitors, society at large, and our planet. America today does not have stakeholder capitalism. Instead, America presently has shareholder capitalism, in which publicly held corporations only maximize their stock value to shareholders.
This Essay analyzes proposals for the United States Securities Exchange Commission to require that all reporting companies make periodic mandatory Environmental, Social, and Governance (ESG) disclosures of comparable, standardized, and quantifiable metrics. These required, ongoing ESG report cards would measure the diversity, sustainability, and ethical impacts of companies on other stakeholders besides shareholders. In effect, this one simple regulatory change means that reporting companies effectively will maximize shareholder value subject to ESG constraints regarding other stakeholders’ interests, just as corporations now maximize profits subject to economic, legal, market, scientific, and technological constraints.
This Essay analyzes how mandatory periodic ESG disclosures can realize diversity, sustainability, and stakeholder capitalism. This Essay explains why corporate greed as currently practiced under the notion of shareholder capitalism is a championed and cherished part of American popular culture. Finally, this Essay examines possible causes of the belief that corporate greed and individual greed are socially desirable and even somehow virtuous
Defunding Police Agencies
Get PDFThis Article contextualizes the police defunding movement and the backlash it has generated. The defunding movement emerged from the work of Black-led activists to reassert democratic control over policing and shift resources to social service agencies and other institutions serving community needs. In reaction, states have enacted anti-defunding bills checking local government reduction of law enforcement budgets. These anti-defunding measures continue a long tradition of state and federal control over local police spending, subverting local democratic control over police agencies. These limits include direct legal constraints on local police spending and indirect constraints through grants and authorization to collect fines, fees, and forfeitures. These mechanisms form a ratchet, bribing local governments to increase police spending and then mandating them to maintain it, at the eventual cost of cutting social services. This leaves cities little choice but to try to police their way out of the problems of poverty and inequality. Thus, constraints on local police funding help explain the decades-long shift of resources from social welfare to law enforcement. The problem revealed by the defunding controversy is not just the size of police budgets but also the perverse process determining those budgets. Before police agencies can be right-sized or reformed, police budgeting must be put in the hands of the people policed
Battleground of the Opioid Crisis: The Eighth Amendment Right to Medication-Assisted Treatment in Prisons and Jails, and Upon Release
Get PDFAbout eighty percent of all inmates in the United States need but will not receive treatment for their Opioid Use Disorder (OUD). Instead, they will leave prison with a 140 times greater chance of a fatal overdose than before their prison sentence. Although incarceration is conceivably an opportune time for the state to connect individuals with treatment, only about one percent of prisons and jails allow the use of Medication-Assisted Treatment (MAT). This failure has a myriad of causes. Notably, beliefs that OUD is a moral failure and that MAT either does not work or is dangerous are both among the most salient and most dubious justifications for withholding treatment. Inmates instead undergo forced withdrawal, a form of cruel and unusual punishment under the Eighth Amendment.
Worse yet, regardless of whether an individual receives MAT in prison, facilities overwhelmingly lack reentry procedures that connect former inmates with MAT programs in the community. Because even one day without MAT can propel an individual with OUD into relapse and a fatal overdose, post-release treatment is crucial. Prison policies directly impact inmates’ tolerance and likelihood of overdose upon release. Accordingly, this Comment argues that MAT, both in jail and post-release, is within the purview of the Eighth Amendment.
This Comment focuses on Pesce v. Coppinger to illustrate the shortcomings of the Eighth Amendment jurisprudence, which have left a large subset of the population without treatment for OUD and do nothing to address post-release overdose rates directly linked to the state. Although some plaintiffs have successfully obtained MAT on Eighth Amendment grounds, the current jurisprudence is insufficient to effectuate inmates’ right to treatment, both during and after incarceration.
To fully effectuate the Eighth Amendment right to be free from cruel and unusual punishment, this Comment argues that changes are needed in the current jurisprudence to recognize the State’s carceral bargain and a corresponding expanded definition of “punishment.” Coupled with a harm reduction argument, these two changes fully recognize inmates’ right to MAT and society’s evolving standard of decency
