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For-Profit Managers as Public Fiduciaries: A Neo-Classical Republican Perspective
Get PDFThis Article examines the fiduciary duties of for-profit managers in modern liberal society. To arrive at the right mix of these duties, it compares the fiduciary duties implied by a standard descriptive model of our society with two competing normative models: Lockean libertarianism on the right and neo-classical republicanism on the left. This comparison shows that all three versions of liberalism, even the one with a Lockean nightwatchman state, require far more extensive duties than we now expect, including a professionalization of management itself. And it shows that the version of liberalism with the most expansive state, neo-classical republicanism, requires the most appealing set of for-profit fiduciary duties. More basically, it concludes that what makes this latter set most appealing is that we ourselves are evaluating it from the perspective it recommends for for-profit managers: what is best, by our own best lights, for society as a whole
FSU Law Focus - 10/23/2020
Get PDFFrom the Dean: Fall 2020 Distinguished Lecture - Lee Fennell, Visibility and Indivisibility in Resource Arrangements; FSU Law Hosts Jurist in Residence Chief Judge Rebecca R. Pallmeyer; Alumni Event: Trailblazer in Law Carlos Moore (’02); Student Profile: 3L Kelly Ann Kennedyhttps://ir.law.fsu.edu/fsu-law-focus/1022/thumbnail.jp
FSU Law Focus - 12/04/2020
Get PDFFrom the Dean: Lawyers Uniting to Communicate Knowledge special e vent with Florida Supreme Court justices; FSU Ranked Nation\u27s Eighth Best Value Law School; Alum Profile: Jorge A. Mestre (’96); Student Profile: 3L Salim Douaihyhttps://ir.law.fsu.edu/fsu-law-focus/1059/thumbnail.jp
FSU Law Focus - 12/11/2020
Get PDFFrom the Dean: Admissions virtual recruiting; Spring Interview Program Registration Open; Alum Profile: Shane T. Costello (’09); Student Profile: 3L Rochelle Baileyhttps://ir.law.fsu.edu/fsu-law-focus/1066/thumbnail.jp
FSU Law Focus - 02/07/2020
Get PDFFrom the Dean: FSU ranked #1 for Government Careers (preLaw magazine); Florida Bar President Engages with Students; Alum Profile: Glen A. McClary (’92); Student Profile: 3L Evan Drakehttps://ir.law.fsu.edu/fsu-law-focus/1306/thumbnail.jp
FSU Law Focus - 02/14/2020
Get PDFFrom the Dean: Black Law Students Association Mock Trial Team wins first place in Constance Baker Motley Mock Trial Competition; Trial Team Holds Training Session for Leon County Teen Court; Alum Profile: John A. Boudet (’85); Student Profile: 3L Nicole Molnerhttps://ir.law.fsu.edu/fsu-law-focus/1315/thumbnail.jp
Federalism as Legal Pluralism
Get PDFThis chapter uses the dynamic federalism model of constitutional dual sovereignty as an analytic window into the larger legal pluralism discourse that has emerged in recent decades. Legal pluralism explores the significance of the multiple sources of legal authority and identity with which individuals simultaneously engage. These overlapping sources of normative authority range from local, national, and international institutions of government to private sources of “quasi-legal” norms generated by tribal, religious, commercial, professional, or other associations. Scholarly advocates of legal pluralism challenge the tradition of legal monism—so entrenched that its presumptions often go unnoticed—which views legitimate legal authority as deriving only from an established source of sovereign or natural authority that unambiguously trumps all competing forces. Proponents of legal pluralism contend that it more accurately captures the full scope of political contest in pluralist societies, including that within federal systems, and the full array of normative forces operating on individual actors. Many argue that more purposefully engaging these multiple sources of norm-generation will provide a better framework for inclusive and deliberative policymaking. Skeptics critique the concept for failing to distinguish between legitimate and illegitimately normative forces. They warn that the unresolved analytical foundations of legal pluralism will foment intractable political conflicts between irreconcilable underlying principles, and that embracing legal pluralism will threaten the hard-fought accomplishments of national and international institutions by weakening the presumed prerogatives of nation-states. Constitutional federalism, itself characterized by multiple sources of authority within a single geographical territory, provides a “vanilla” example of legal pluralism in action that sidesteps much of its controversy. Because it involves sovereign authority only, federalism avoids legal pluralism’s normative challenge to statism, and it resolves at least some of the heterarchical uncertainty unleashed by legal pluralism through the hierarchical ordering device of federal supremacy. Nonetheless, the structural features of federalism provide valuable platforms for the kind of cross-jurisdictional deliberation and dialogic policymaking that resonate with the good-governance proposals by many legal pluralists. The chapter uses federalism as a lens to explore the overall pluralist critique of monism and its proposals for more inclusive norm generation. Part II introduces federalism as system of dual sovereignty, briefly reviewing the American and European models. It presents federalism as an example of simple pluralism and explores the convergence between normative pluralism and dynamic federalism. Part III considers examples of negotiated governance in American federalism to assess the claims by normative pluralism for more inclusive dialogic governance. After cataloging various forms of negotiated federalism, it considers the benefits that dialogic processes can confer on governance, and explores the legitimizing values of bargained-for consensus as a procedural impasse tool. Finally, Part IV considers three meta-phenomena shared by legal pluralism and dynamic federalism: their disaggregable positive and normative accounts, their rejection of the categorical zero-sum assumptions that weakened their intellectual predecessors, and the challenges they each face contending with truly zero-sum contexts
One Person, Two Hats: Combining the Roles of Chief Compliance Officer and Chief Legal Officer
Get PDFInstitutionalism, Legitimacy, and Fact-Finding in International Disputes
Get PDFEfforts to reform investor-state dispute settlement with an investment court promise to elevate the role of institutions in dispute resolution. The goal of this renewed campaign for institutionalism is to enhance both the legitimacy of arbitrators as individual decision-makers and the legitimacy of legal interpretation. But these reform efforts ignore another core aspect of legitimacy-the legitimacy of the fact-finding process. Ignoring this aspect of legitimacy is a significant oversight, as treaty authors, disputing parties, and practitioners all remain dissatisfied with fact-finding quality and with international law\u27s continued failure to address the factual complexity of today\u27s disputes. Both theory and experience with institutionalism in existing systems predict that an investment court-with a standing administrative apparatus, a standing first-instance tribunal, and a standing appellate mechanism-cannot address this dissatisfaction. At best, an investment court will have only marginal effects on factfinding. At worst, it will become a potential source of unreliable factfinding practices and serve only to increase the cost and length of the process. This Article cautions investment-court proponents to consider the aspect of legitimacy that they have missed and points them to an alternative, rules-based approach that would make changes to the evidentiary rules that govern the production, testing, and evaluation of evidence. A rules-based approach offers the opportunity to promote fact-finding practices that increase quality, to discourage practices that do not, and to support consistency and predictabilityall without requiring wholesale reform or degrading efficiency. The Article concludes with two rules-based strategies: the establishment of analytical frameworks to increase adjudicator accountability and engagement with the factual record and the appointment of subjectmatter experts as adjudicators to inject expertise directly into the decision-making process in factually complex disputes
Facilitating Access to Cross-Border Supplies of Patented Pharmaceuticals: The Case of the COVID-19 Pandemic
Get PDFThe COVID-19 pandemic has brought into stark relief the gaps in global preparedness to address widespread outbreaks of deadly viral infections. This article proposes legal mechanisms for addressing critical issues facing the international community in terms of providing equitable access to vaccines, treatments, diagnostics, and medical equipment. On the supply side, the authors propose the establishment of mandatory patent pools (\u27Licensing Facilities\u27) on a global or regional, or even national basis, depending upon the degree of cooperation that maybe achieved. The authors also discuss the importance of creating shared production facilities. On the demand side, the authors propose the establishment of Regional Pharmaceutical Supply Centers (RPSCs) for the collective procurement of products, and the need to coordinate the issuance of necessary compulsory licenses for production and/or importation, depending on relevant circumstances. The authors envisage that centralized coordination by RPSCs should assist in overcoming difficulties individual countries may encounter in addressing administrative and technical issues in procuring supplies, as well as creating improved bargaining leverage with potential suppliers. The authors finally address the problem created by the decision of various high-income countries to \u27opt out\u27 as eligible importing countries under the World Trade Organization TRIPS Agreement Article 31bis amendment that addresses the predominant export of pharmaceutical products under compulsory licenses