Education Moulds

Garrett Epps (University of Baltimore School of Law) has posted Interpreting the Fourteenth Amendment: Two Don’ts and Three Dos
(William & Mary Bill of Rights, Vol. 16, No. 2, 2007) on SSRN.  Here is the abstract:

A sophisticated reading of the legislative record of the framing of the Fourteenth Amendment can provide courts and scholars with some general interpretive principles to guide their application of the Amendment to current legal problems. The author argues that two common legal conceptions about the Amendment are, in fact, misconceptions. The first is that the Amendment was chiefly concerned with the immediate situation of freed slaves in the former slave states. Instead, he argues, the legislative record suggests that the framers were broadly concerned with the rights not only of freed slaves but also of foreign-born immigrants in the North and the South, and of Southern Unionists and Northern migrants in the former Confederacy.

The second misconception is that the central purpose of the Amendment was to "constitutionalize" the Civil Rights Act of 1866, and that section 1 can thus be interpreted as chiefly incorporating the short list of basic civil rights protected by that Act. Both the legislative record and the statements by the Amendment’s sponsors during the debate over its framing demonstrate that the Amendment was an independent measure aimed at a much broader set of reforms in state institutions.

The author suggests that the record does support three positive statements about the Amendment. The first is that the Amendment was aimed at addressing systemic flaws in the Constitution of 1787. The second proposition builds on the first by suggesting that the major flaw the framers saw in the original Constitution was its empowerment of a complex political and social institution widely known to antebellum thinkers as the "Slave Power," a set of privileges for slavery that had permitted the slave states to dominate the federal government since at least 1800. The last proposition is that the Amendment, having been forged during an intense struggle between the executive and legislative branches, had as one of its aims to empower Congress, and that current jurisprudence that reads it as primarily concerned with empowering the federal courts misconceives the historical context from which it emerged.

Finally, the author suggests that the broad political focus of the Amendment invites current interpretations that draw on political theory about the requirements of a genuinely democratic system, and that one such theory is the idea of the "open society" proposed during the mid-twentieth century by the influential philosopher Karl Popper.

And from the text:

The inevitable assumption of provisionally discernible intent, however, is not
identical with the constitutional claim of an “originalist” method—that is, with the
claim that there exists some dependable mechanism for discerning the overriding,
singular “intent” of a group of people that can be meaningfully applied to produce
reproducible, falsifiable, dispositive answers.  That’s true even when the specific
questions relate to matters the legislators or framers actually may have thought about;
when they relate to matters that did not exist at the time of the framing—say, the
citizenship of children of “illegal aliens” or free expression on the Internet—the
question becomes incoherent.  While one may think about the Fourteenth Amendment
in terms of intentions, “original intent” in the sense proposed by “originalists” cannot
be discovered by any intelligible method.

Of course, "new originalists" will agree with Epps that "intentions" do not provide the linguistic meaning (or semantic content) of the constitutional text.  Interesting and worth reading.

Source: Lawrence Solum

Matthew James Barbabella , Daniel J. Cohen , Alex Kardon and Peter Molk have posted  Insider Trading in Congress: The Need for Regulation on SSRN.  Here is the abstract:

Is regulation of Congressional insider trading desirable? We intend to use the STOCK Act (H.R. 2341) as a springboard for approaching the need for Congressional insider trading regulation from a slightly more academic perspective. First, we describe the STOCK Act by placing it in recent historical context. Understanding the motivation to reform Congressional ethics that existed earlier this decade is crucial to evaluating the STOCK Act and its prospects for eventual passage by Congress. Second, we review the body of insider trading law that already operates to restrain corporate insiders and others from making some trades. The most important SEC rules, as well as the most significant cases in establishing insider trading doctrine-among them, Chiarella v. United States, Dirks v. Securities and Exchange Commission, and United States v. O’Hagan -are considered with an eye toward their relevance to what we will generally refer to as Congressional insider trading. To assess the practical need for regulation of Congressional insider trading, we also discuss Congressional ethics rules and the Speech or Debate Clause. The behavior of legislators and their aides is affected by both formal rules and informal norms, and we endeavor to explore both. The adequacy of current enforcement mechanisms for these rules and standards is also considered.

Source: Lawrence Solum

Michèle B. Bättig and Thomas Bernauer (ETH Zurich) have posted National Institutions and Global Public Goods Are Democracies More Cooperative in Climate Change Policy?
(International Organization, Vol. 63, No. 2, 2009) on SSRN.  Here is the abstract:

This paper examines whether democracies contribute more to the provision of global public goods. It thus contributes to the debate on the effects of domestic institutions on international cooperation. The focus is on human-induced climate change, in Stern’s (2007) words "the biggest market failure the world has ever seen". Using new data on climate change cooperation we study a cross-section of 185 countries in 1990-2004. The results show that the effect of democracy on levels of political commitment to climate change mitigation (policy output) is positive. In contrast, the effect on policy outcomes, measured in terms of emission levels and trends, is ambiguous. These results demonstrate that up until now the democracy effect has not been able to override countervailing forces that emanate from the free-rider problem, discounting of future benefits of climate change mitigation, and other factors that cut against efforts to reduce emissions. Even though democracies have had a slow start in moving from paper (policy output) to practice (policy outcomes), particularly in the transportation sector, we observe some encouraging signs. The main implication of our findings for research on international politics is that greater efforts should be made to study policy output and outcome side-by-side. This will help in identifying whether more democratic countries experience larger ‘words - deeds’ gaps also in other policy areas, and whether there are systematic differences of this kind between domestic and international commitments and across different policy areas.

And this link for supporting materials for this paper.

Source: Lawrence Solum

Gregory Shaffer and Dan Ganin (University of Minnesota - Twin Cities - School of Law) have posted WTO Remedies: Extrapolating Purpose from Practice (THE LAW, ECONOMICS, AND POLITICS OF TRADE RETALIATION IN WTO DISPUTE SETTLEMENT, Chad P. Bown & Joost Pauwelyn, eds., Cambridge University Press, 2009, Minnesota Legal Studies Research Paper No. 08-51) on SSRN.  Here is the abstract:

Scholars
continue to debate over the aim of WTO remedies in light of the
ambiguity of the legal texts. One method of discerning the purpose of
WTO remedies is by examining Members’ practice, constituting the
law-in-action of WTO remedies. This chapter’s assessment of current
practice leads to five interrelated findings: (1) the process for
applying an authorized WTO remedy is driven primarily by domestic
export interests demanding compliance, not rebalancing; (2) complainant
government practice has responded accordingly, focusing on compliance;
(3) governments have done so by strategically targeting
politically-influential foreign export interests, as opposed to
politically influential domestic protectionist interests, while
attempting to minimize harm to domestic consumers and consuming
industries; (4) constituencies within the complainant Member who fear
that their products may be on a retaliation list (that is, importers
and import-consuming industries) have been catalyzed to lobby to exempt
goods from the retaliation list, apparently more so than producers who
would benefit from rebalancing through the imposition of protective
tariffs; and (5) overall, Members have not implemented retaliatory
countermeasures as frequently as would be predicted were the primary
goal rebalancing. Our findings raise the prospect that WTO Member
practices could have systemic impacts within the WTO over time. If the
ministries representing WTO Members perceive that the objective of WTO
remedies is compliance, then such beliefs could affect formal law over
time, whether through the negotiation of new legal texts or the
interpretation of existing ones. In any case, Members’ practices
constitute the WTO law-in-action, that is, how formal WTO remedies are
actually applied.

Source: Lawrence Solum

Raphael Cohen-Almagor (University of Hull) has posted Bloody Wednesday in Dawson College - The Story of Kimveer Gill, or Why Should We Monitor Certain Websites to Prevent Murder (Studies in Ethics, Law and Technology, Vol. 2, No. 3, Article 1, December 2008) on SSRN.  Here is the abstract:

The article deals with the Dawson College Massacre, focusing on the story of Kimveer Gill, a 25-year-old man from Laval, Montreal who wished to murder young students in Dawson College. It is argued that the international community should continue working together to devise rules for monitoring specific Internet sites, as human lives are at stake. Preemptive measures could prevent the translation of murderous thoughts into murderous actions. Designated monitoring mechanisms of certain websites that promote violence and seek legitimacy as well as adherents to the actualization of murderous thoughts and hateful messages have a potential of preventing such unfortunate events. Our intention is to draw the attention of the multifaceted international community (law enforcement, governments, the business sector including Internet Service Providers, websites’ administrators and owners as well as civil society groups) to the shared interest and need in developing monitoring schemes for certain websites, in order to prevent hideous crimes.

Source: Lawrence Solum

Nelson Lund and David B. Kopel (George Mason University School of Law and Independence Institute) have posted  Unraveling Judicial Restraint: Guns, Abortion, and the Faux Conservatism of J. Harvie Wilkinson, III on SSRN.  here is the abstract:

Writing in the Virginia Law Review, a distinguished federal judge maintains that true conservatives are required to substitute principles of judicial restraint for an inquiry into the original meaning of the Constitution. Accordingly, argues J. Harvie Wilkinson, III, the Supreme Court’s Second Amendment decision in District of Columbia v. Heller is an activist decision just like Roe v. Wade: "[B]oth cases found judicially enforceable substantive rights only ambiguously rooted in the Constitution’s text." In this response, we challenge his critique.

Part
I shows that Judge Wilkinson’s analogy between Roe and Heller is
untenable. The right of the people to keep and bear arms is in the
Constitution, and the right to abortion is not. Contrary to Judge
Wilkinson, the genuine conservative critique of Roe is based on the
Constitution, not on judicial "values." Judge Wilkinson, moreover, does
not show that Heller’s interpretation of the Second Amendment is
refuted, or even called into serious question, by Justice Stevens’
dissenting opinion.

Part II shows that Judge Wilkinson
himself does not adhere to the "neutral principle" that he claims to
derive from "judicial values." Under the principle of judicial
restraint that he articulates, many now-reviled statutes, including the
Jim Crow laws of the twentieth century, should have been upheld by the
courts. Judge Wilkinson does not accept the consequences of his own
supposedly neutral principle, preferring instead to endorse or condemn
Supreme Court decisions solely on the basis of his policy preferences.
That is not judicial restraint. It is judicial lawlessness.

Highly recommended.  Devastating–although everything depends on the merits of Heller.  On this, Lund & Kopel are absolutely correct in pointing out that Wilkinson simply assumes (but does not argue) that Steven’s dissent is either correct or reasonable.

Source: Lawrence Solum

Sidney Richards (Utrecht) has posted Survey Article: The Legitimacy of Supreme Courts in the Context of Globalisation (Utrecht Law Review, Vol. 4, No. 3, pp. 104-127, December 2008) on SSRN.  Here is the abstract:

The objective of this article is to present an overview of the state of the art concerning the legitimacy of Supreme Courts in the context of globalisation. In recent years, there has been much discussion about the observed increase in both the references to foreign decisions in matters of domestic adjudication, as well as the alleged and precipitate rise of ‘transjudicial dialogue’, or formal and informal communication between the domestic courts of various national jurisdictions. A central concern is whether Supreme Courts possess the necessary authority, and thus the legitimacy, to adopt a more ‘internationalist’ disposition.

This article will demonstrate how there are various coexisting discourses of legitimacy, each with their own particular features. These various discourses are not always compatible or easily commensurable. It will argue, moreover, that the basic dilemma regarding judicial legitimacy in a globalised world is a species of a more general problem of globalisation studies, namely how to reconcile a conceptual vernacular which is permeated by domestic, state-centric notions with a political reality which is increasingly non-national in its outlook.

Source: Lawrence Solum

Grainne De Burca (Fordham University - School of Law) has posted The EU, the European Court of Justice and the International Legal Order after Kadi on SSRN.  Here is the abstract:

This article examines the response of Europe’s courts to the dramatic challenges recently brought before them against the UN Security Council’s anti-terrorist sanctions regime. These challenges raise central questions concerning the authority of international law in general, and of binding decisions of the Security Council in particular. The article focuses specifically on the response of the European Union’s Court of Justice (ECJ) in the Kadi case, in which the ECJ annulled the EC’s implementation of the Security Council’s asset-freezing resolutions on the ground that they violated EU norms of fair procedure and property-protection. Kadi is a remarkable case in many ways and it has been warmly greeted by most observers. The article argues however that the robustly pluralist approach of the ECJ to the relationship between EU law and international law in Kadi represents a sharp departure from the traditional embrace of international law by the European Union. It is an approach which carries certain costs for the EU and for the international legal order in the message it sends to the courts of other states and organizations contemplating the authority of Security Council resolutions. More importantly, the ECJ’s approach carries the risk of undermining the image the EU has sought to create for itself as a virtuous international actor which maintains a distinctive commitment to international law and institutions.

Source: Lawrence Solum

Niva Elkin-Koren (University of Haifa - Faculty of Law) has posted Governing Access to Users-Generated-Content: The Changing Nature of Private Ordering in Digital Networks (GOVERNANCE, REGULATIONS AND POWERS ON THE INTERNET, E. Brousseau, M. Marzouki & C. Meadel eds., Cambridge University Press, 2009) on SSRN.  Here is the abstract:

This
paper analyzes the rise of private ordering as a dominant strategy for
governing creative works in the digital environment. It explores the
changing nature of private ordering in the Web 2.0 environment, where
it is used for governing User-Generated Content (UGC). Private ordering
is playing an ever greater role in governing the terms of access to
creative works. Rightholders often use End-User License Agreements
(EULA) to expand the scope of protection provided under copyright law,
by limiting the rights of users under legal doctrines such as ‘fair
use’ and ‘first sale’. At the same time, private ordering has also been
employed in recent years by Open Access initiatives, to promote access
to creative works and facilitate interaction, exchange and sharing of
creative materials.

Governing access to (UGC) by private
ordering raises a whole set of issues related to licensing through
platforms, the interdependency of users and platforms, and the
licensing by many to many. The changing creative landscape of the Web
2.0 expands the ethos of creativity, supplanting the proprietary
exclusivity-based discourse with a new set of values: sharing,
participation, and collaboration. Still, some private ordering
strategies may reinforce proprietary notions, even unintentionally.

Part
I describes the rise of private ordering in the digital environment.
Part II scrutinizes the arguments of proponents and opponents of
private ordering for governing access to creative works. Part III
describes the use of private ordering to govern access to UGC,
analyzing the different nature of private ordering in this environment
and the special consideration it raises. Part IV examines whether the
ascendancy of UGC gives rise to different considerations related to
private ordering.

Source: Lawrence Solum

John Flood and Avis Whyte (University of Westminster and University of Westminster - School of Law) has posted  Straight There No Detours: Direct Access to Barristers on SSRN.  Here is the abstract:

With
the inception of the Legal Services Act 2007 following the Clementi
Report on new ways of providing legal services in the UK, the Bar is
moving to alter the way it practices. Traditionally, the Bar has been a
referral profession relying on solicitors and other professionals to
instruct barristers when legal opinions or advocacy is sought. In
recent years the Bar has attempted to open the barristers’ profession
to more direct access from clients thus bypassing solicitors.

This
has had a mixed reaction among barristers and barristers’ clerks. Some
see it as the route to a modern diverse profession while others see it
as potentially harming these traditional relationships between
barrister and solicitor that have been built up over many years. Among
solicitors this has been met by their own moves to become advocates in
the higher courts.

The report presents findings from research
carried out among barristers, clerks, chambers chief executives, and
users. Data were collected via interview, survey, and documentary
sources. It shows that barristers represent value for money for clients
because of lower overheads than solicitors. But the current rules in
place that regulate how barristers carry out direct access work do more
to hinder than encourage users.

The report concludes that since
the Legal Services Act will permit "alternative business structures"
which will directly compete with barristers, and solicitors, an
expansion of direct access work is one way of countering the effects of
these changes.

Source: Lawrence Solum