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Conscience Wars in the Americas
No full textAcross the globe, public and private actors are now invoking conscience as a ground for objecting to laws or judicial decisions that confer on citizens reproductive and LGBT rights. Conscience claims in culture-war conflicts over reproduction and sexuality differ from paradigmatic religious accommodation claims, where an individual from a minority faith seeks to engage in ritual observance
or religiously-motivated dress that runs afoul of generally applicable laws. Accommodation of culture-war conscience claims may inflict significant harms on other citizens and impose older, traditional views on citizens whose rights the law only recently has come to protect.
Our intervention is practical and critical. We offer guidance on accommodation, showing how government might promote pluralism by accommodating objectors while protecting citizens who may be affected. We suggest that when government accommodates conscience in a framework that does not preserve the other citizens’ rights, government may be employing accommodation to
create a de facto public order favoring objectors’ beliefs
ESG Investing Under ERISA
Get PDFThe Department of Labor (“DOL”), through its administration of ERISA,has a critical role to play in the regulation of private“employee pension benefit plans.”Most importantly, the DOL is tasked with enforcing the fiduciary duties of ERISA plan managers (trustees who retain investment and voting authority or “investment managers”who receive such authority through delegation by the trustees).Under ERISA, plan managers owe the strictest duties of loyalty and care to their participants and beneficiaries. They are to be constantly guided by the fiduciary prin-ciples of acting solely in the interest of the participants and beneficiaries and for the exclusive purpose of providing financial benefits to them
My Friend, Charles Reich
No full textMany of you have come to love Charles through reading his works, and that is both admirable and understandable. I have a different perspective. I came to know and love Charlie before he wrote what you all will talk about, and I loved his works not only in themselves and for their scholarly value, but also and as much as manifestations of the person Charlie was, the person I knew. So let me this evening tell you some stories about him and perhaps, in that indirect way, shed some lights on his writing.
Now, how did I get to know Charlie? I was clerking for Justice Black, and it was a hard year for Black because he won all the cases
he didn't care about - economic cases, five to four - and he lost all the cases he cared about - the civil rights and civil liberties cases, five to four - because there were four and Tom Clark, who always voted for the government. Clark would be on Black's side of the economic cases and on the other side on the others. And that was frustrating to the judge, because he liked to win. Unlike most judges, he liked to win.
And on Friday, Black wanted to get these things off his mind and play bridge. He loved bridge and loved tennis. He would never
play tennis with me - I wasn't good enough. But he liked to play bridge, and the bridge foursome was a lawyer in Washington who was a very good bridge player, Charlie Reich, and me. And we wanted the judge to win, because he wanted to win, and we wanted him to win. But had we tried to make him win, he would've seen through it, and it would've been a disaster.
So what happened was that Charlie said, quite truly, "I can't be the judge's partner, because emotionally that just is something I can't do." And that was clearly true. So one of us, either the lawyer or I, would be the judge's partner, and the other would be Charlie's partner. Well, Charlie's brilliant, but you cannot be his partner in a thing like bridge. So with everybody doing their very best, the judge would win all the time, or almost all the time. That's how I got to know him
Transcending Tax Sovereignty and Tax Standardization: Three Questions
No full textThe Panama and Paradise Papers shocked the world by displaying the extent to which tax avoidance and evasion were running amok. Estimates of tax avoidance and evasion facilitated by tax havens and tax competition differ, but most agree that tax avoidance and evasion are significant and are of the order of tens of billions of U.S. dollars. But, the world has changed since then for both corporate and individual taxpayers. Corporate income tax rates keep dropping, with "business friendly" tax reforms sprouting everywhere, most prominently through the passage of the Tax Cuts & Jobs Act ("TCJA") in the United States in 2017. Emerging global information-sharing regimes like the OECD's Common Reporting Standard ("CRS") are under implementation in Switzerland, Panama, and Singapore. At the same time, global pressure against tax havens is at all-time highs. The European Union is weaponizing its strong antitrust laws and the state aid doctrine against members' aggressive tax practices. Moreover, States seem to be cooperating on a global scale pursuant to the OECD's recent Base Erosion and Profit Shifting ("BEPS") initiative. While international taxation has been the subject of intense academic and policy examination, scholars have ignored how these phenomena evidence a broad push towards standardization taking place around the world
The Ultimate Opinion Rule and Forensic Science Identification
No full textFor decades, scientists, statisticians, psychologists, and lawyers have urged forensic scientists who compare handwriting, fingerprints, fibers, shoeprints, toolmarks, paint chips, and other items to change their ways. At last it seems that "[t]he traditional assumption that items like [these] have unique patterns that allow experts to accurately determine their source ... is being replaced by a new logic of forensic reporting." With the dissemination of"probabilistic genotyping" software that generates "likelihood ratios" for DNA evidence, the logic is making its way into U.S. courts. Recently, however, the Justice Department's Senior Advisor on Forensic Science commented on a connection between prominent statements endorsing the new logic and an old rule of evidence concerning "ultimate issues." He suggested that "some people ... would like to pretend that [Federal Rule of Evidence 704] doesn't exist, but it actually goes against that school of thought." This essay considers the nexus between Rule 704 and forensicscience
testimony, old and new. It concludes that the rule does not apply to all source attributions, and even when it does, it supplies no affirmative reason to admit them over likelihood statements. In ruling on objections to traditional source attributions, courts would be remiss to think that Rule 704 favors this type of opinion testimony over the newer evidence-centric statements
Judge Stephen F. Williams, 1936-2020
No full textThe field of administrative law has lost one of its most important and beloved figures, Judge Stephen F. Williams of the D.C. Circuit, who was 83 years old when he died on August 7, 2020.
Since his appointment by President Reagan in 1986, Williams held a reputation as one of the nation’s most formidable judicial minds in the realm of regulation. An early member of the law-and-economics movement during his years as a professor at the
University of Colorado Law School (1969-1986), Williams became known on the bench for the economic sophistication of his opinions and for being the D.C. Circuit’s foremost expert in that most complex and consequential area, energy law. In the words of his colleague David Tatel in 2006: “This former law professor converts each case into an intellectually challenging seminar on
economics, regulation and administrative law. If we [the judges of the D.C. Circuit] received graduate credit for sitting with Professor Williams, we’d all have our LLMs by now.
Building Coalitions out of Thin Air: Transferable Development Rights and “Constituency Effects” in Land Use Law
No full textTransferable Development Rights (TDRs) were supposed to be a solution to the intractable problems of land use, a bit of institutional design magic that married the interests of development and preservation at no cost to taxpayers and with no legal risk. Under aTDR program, development is limited or barred on properties targeted for preservation or other regulatory goals, but owners of those lots are allowed to sell their unused development rights to other property owners. In theory, this allows the same amount of development to occur while preserving favored uses without tax subsidies or constitutional challenges. Reviewing their use over the past fifty years, this Article shows that the traditional justifications for TDRs do not work. In practice, TDRs are not necessary to avoid takings litigation, are not costless to taxpayers, and do not balance the interests of preservation and development. Instead, they serve as yet another growth control in metropolitan areas where such controls have caused housing crises and major harms to the national economy. Assessed as a technocratic tool for solving problems in land use, TDRs are a failure.
But this Article shows that there is a case for TDRs not as a technocratic but rather as a political tool. By giving valuable development rights to some popular or otherwise politically influential owners of regulated property, a city can build a coalition for re-zonings that might otherwise be politically impossible. The effect of TDRs on politics can be positive to the extent that TDRs strengthen constituencies or land use goals that local politics systematically undercounts, as we show through an analysis of New York City’s Special District Transfer TDR program. In particular, TDRs could help break Not InMyBack Yard opposition to new housing by building a competing pro-growth coalition.
More generally, using TDRs as an example, the Article shows how land use law is the creator as well as creature of local politics. Existing property law helps cement antidevelopment coalitions, but savvy leaders could use moments in power to create stable pro-growth coalitions by enacting new laws that help mobilize new pro-growth constituencies. Understanding these “constituency effects” of land use law allows policymakers to redesign entitlements like TDRs to produce a healthier land use policies
Extended Shareholder Liability for Systemically Important Financial Institutions
No full textRegulators generally have tried to address the problems posed by the excessive risk-taking of Systemically Important Financial Institutions (SIFIs) by placing restrictions on the activities in which SIFIs engage. However, the complexity of these institutions makes such attempts necessarily imperfect. This Article proposes to address the problem at its very source, which is the incentives that SIFI owners have to push for excessive risk-taking by managers. Building on the traditional rule of "double liability, "we propose to modify the current (general) rule limiting the liability of SIFI shareholders to the amount of their initial investments in such companies. We propose replacing the extant limited liability regime with a new system that imposes additional liability over and above what SIFI shareholders already have invested in a preset amount that varies with a SIFI's centrality in the financial network. Our liability regime has a number of advantages. First, by increasing shareholder exposure to downside risk, it discourages excessive risk-taking. At the same time, by placing a clearly defined ceiling on shareholders' total liability exposure, it will not obliterate shareholders' incentives to invest in the first place. Second, the liability to which shareholders are exposed is carefully tailored to the level of systemic risk that their institution creates. Thus, our rule induces shareholders to account for the negative
externality SIFIs can impose without unduly stifling such financial institutions' role within the financial system and in the wider economy. Third, as the amount of liability is clearly defined ex ante using the rigorous tools of network theory, our rule minimizes the influence of interest groups and the impact of idiosyncratic government decisions. Last, as markets know in advance the
amount of liability to which shareholders are exposed, our rule favors the creation of a vibrant insurance and derivative market so that the risk of SIFIs defaults can be allocated to those who can better bear it
Taking Compliance Seriously
No full textHow can we ensure corporations play by the “rules of the game”—that is, laws encouraging firms to avoid socially harmful conduct? Corporate compliance programs play a central role in society’s current response. Prosecutors give firms incentives—through discounts to penalties—to implement compliance programs that guide and monitor employees’ behavior. However, focusing on the incentives of firms overlooks the perspective of managers, who decide how much firms invest in compliance
Costs, Conflicts, and College Savings: Evaluating Section 529 Savings Plans
No full textAmericans collectively save hundreds of billions of dollars for their children’s education in Section 529 college savings plans. These plans are sponsored by states and largely exempt from the legal regimes that typically apply to money managers. This is the first academic study to comprehensively evaluate the quality of menus offered by these plans. While some plans are cost-efficient, there is considerable variation, and many plans are egregiously expensive. While large 401(k) plans have average total costs of 0.3%, college savings plans average 0.31% in administrative fees alone, with investment expenses adding another 0.32%. Plans distributed through brokers are particularly costly. Controlling for size, broker-sold investments are twice as expensive as those sold direct to consumers, even before accounting for brokerage sales charges that may exceed five percent of invested assets