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Annual Report of the Indiana Universiy Maurer School of Law Digital Repository, 2018/19
Get PDFA brief annual report documenting the use and growth of the Indiana University Maurer School of Law, Jerome Hall Law Library, Digital Repository. Includes lists of the most downloaded documents and attached Excel spreadsheets of data
Private Government and the Transparency Deficit
Get PDFModern government is comprised of a complex admixture of public and private actors. From the provision of public services, to growing movements to sell off national parks, to the very task of legislating, the public is unlikely to encounter an area of government that is untouched by privatization. But public transparency mechanisms, including the seminal Freedom of Information Act (FOIA), rely upon an outdated, rigid conception of the private-public dichotomy. They fail to provide the public with any meaningful access to what we call the “private government,” which includes the private actors who bear an increasing responsibility for performing governmental functions. A paradigm shift is required, from a focus on who creates or possesses a document, to the public impact and importance of the document.
We propose to turn the primary tool of privatization—the private law contract—into a mechanism for injecting public oversight into contractual delegation. Specifically, we outline a framework for a statute which would require agencies to retain ownership of information created pursuant to a contractual relationship or to justify, ex ante, why the public interest in public access is outweighed by other considerations. The agency-owned records would be subject to the full panoply of ordinary FOIA provisions and any decision to exempt records from the ownership requirement would be subject to judicial review. Our proposal mitigates some of the problems inherent in asking private entities to open their books to FOIA scrutiny and properly places the onus on public agencies to fulfill their roles as protectors of the public
Water, Water, Anywhere?: Protecting Water Quantity in State Water Quality Standards
Get PDFAlthough much of the earth’s surface is covered with water, less than one percent of water is available for human use. Water is becoming progressively scarcer worldwide, as demand increases and pollution, drought, and climate change jeopardize access to clean water. The United States is no exception to that trend. Effective regulation of water supplies can blunt the impacts of water scarcity. This Article suggests that states can—and should—regulate instream flows and lake levels in their federally-mandated water quality standards, with an eye toward conserving scarce water resources. Regulating water quantity as an element of water quality is not only permissible under the Federal Clean Water Act according to Supreme Court precedent, but it is also a prudent safeguard against water shortages. This Article advocates for the adoption of numeric water quality criteria mandating minimum river instream flows and lake levels pursuant to section 303 of the Clean Water Act. It argues that numeric criteria are preferable to both narrative criteria, which may be vaguer and less susceptible to enforcement, and continued reliance on the willingness of agency staff to interpret the designated uses of water bodies and state antidegradation policies as requiring adequate amounts of water
Engineered Credit Default Swaps: Innovative or Manipulative?
Get PDFCredit default swaps (“CDS”) are, once again, making waves. Maligned for their role in the 2008 financial crisis and condemned by the Vatican, investors are once more utilizing CDS to achieve results of questionable market benefit. A CDS is a financial contract that allows investors to “bet” on whether a borrower will default on its loan. However, rather than waiting to see how their bets pan out, some CDS investors are collaborating with financially distressed borrowers to guarantee the profitability of their CDS positions—“engineering” the CDS’ outcome. Under the CDS contract, these collaborations are not prohibited, yet they have roiled the CDS market, leading some market participants to view the collaborations as a sign that CDS are little more than a rigged game. On the other hand, some view “engineered CDS transactions” as an innovative form of financing for distressed companies. As engineered CDS transactions proliferate in the market, it becomes increasingly prudent to look beyond their contractual acceptability to assess whether, from a legal point of view, these transactions are permissible. Engineered CDS transactions demonstrate the challenges that the existing legal and non-legal framework face in effectively responding to new forms of market distortion. This Article examines the costs and benefits of engineered CDS transactions on the market as a precursor to determining whether legal intervention is needed. Assessment of the relative costs and benefits of engineered transactions indicates that despite their innovativeness, engineered CDS transactions are largely detrimental to the markets because they impose costs on actors unaffiliated with the CDS market and, more broadly, destroy public trust in the financial markets. Yet, despite their associated harms, this Article demonstrates that, legally, engineered transactions exist in a gray space. This Article analyzes the phenomenon of engineered CDS transactions, assessing the capacity of applicable legal frameworks, private standards, and market discipline, to address these transactions and finds each to be lacking. Thus, this Article proposes a range of responses, including modernization of the existing anti-manipulation framework, to mitigate against the harm and collateral consequences that stem from engineered CDS transactions
Building a Federation of Citizens - The American Experience
No full textProfessor Hoffman\u27s contribution to this volume is chapter 4 Building a Federation of Citizens - The American Experience.https://www.repository.law.indiana.edu/facbooks/1260/thumbnail.jp
From the Private to the Public to the Private? Historicizing the Evolution of Public and Private Authority
Get PDFA central assumption in much contemporary scholarship is that a central shift has taken place over the course of the last four decades: a shift from a world largely centered on public authority to a world that is increasingly dominated by private authority. The central expression of this shift is seen to be a concurring move from public to private law and thus from legislation to contract as the central legal instrument structuring economic as well as other social processes.
While developments in this direction can certainly be observed, this article provides a more nuanced perspective. Outlining a long-term historical perspective, this article reconstructs the manifold and volatile dynamic between institutionalized forms of public and private authority. It does so on the basis of the argument that, in the course of this evolutionary process, the very function and meaning of both public and private authority has been fundamentally altered. This alteration implies the transformation of both dimensions into functionally limited and more specific phenomena. With this background, it becomes possible to argue that societal evolution is characterized by a dual expansion of both public and private forms of authority.
The starting point is an understanding of authority as condensed power. Asymmetric relations implying either direct or indirect forms of domination are observable throughout society and are as such an intrinsic element of all social relations and processes. Authority is, however, based on a particular institutionalization of power, typically delineated and condensed with the help of legal instruments. Under radical modern conditions, law becomes constitutive for authority to the extent that one might argue that no form of authority exists outside its legal form.
With this background, the article argues that the pre-1945 world at the local, national, and transnational level of world society was characterized by a relative dominance of private forms of authority. The process leading to state-based modern public law gaining not only a formal but also a factual capacity to structure societal processes was a century-long process: a process which implied an epic struggle aimed at undermining and eradicating alternative centers of public and private authority in society. It was, however, a first in the mid-twentieth century that an outright breakthrough of this claim and aspiration could be observed. This implied a respecification of public and private authority that remains central to our understanding of authority to this day