Author Archive for nate-oman
A Modest Defense of Allowing Firms to Execute Junior Associates
posted by Nate Oman
Getting a job is difficult, particularly in a down economy. One way in which one sees this is in the use of unpaid or poorly paid intern labor. Many people at the bottom of the employment ladder are willing to work for minimal compensation as a way of learning the ropes and getting their foot in the door. Internships do two things for employers. First, they provide a pool of cheap – if unskilled – labor. Second, they shift the costs of training from the employer to the employee. In effect, the employer holds off on hiring the employee until he or she has expended her own resources in the form of time and labor acquiring skills that the employer desires. Internships are thus much like professional education — a training cost that is bourn mainly by employees rather than employers.
Here’s a question: Why is the military different?
August 27, 2010 at 5:03 pm
Posted in: Contract Law & Beyond
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Three Defenses of Markets
posted by Nate Oman
Broadly speaking, I think that there are three families of arguments that can be made in defense of markets. Most commonly within the legal academy markets are defended on the basis of efficiency. The central question is distributive: How do we move resources to agents in such a way as to maximize the aggregate welfare? Markets, so the argument, do this very well. Expressed preferences are the coin of the realm in market transactions, and we assume that expressed preferences are the best guide to welfare. Indeed, on some theories welfare simply IS the satisfaction of expressed preferences. Provided that we can have a regime that insures that transactions are voluntary, externalities are internalized, and transaction costs are overcome, markets will allocated resources better than any competing social institution. Thus the efficiency argument.
The second defense of markets is libertarian. This looks a lot of like the efficiency argument but is actually quite different, notwithstanding the fact that libertarians frequently confuse the two. In the libertarian argument what matters is not welfare but freedom. Freedom is taken as a good in and of itself, even if choices might result in reductions of welfare for the chooser. Paternalism is bad because is shows a disrespect for the autonomy of market participants. Depending on how one conceptualizes welfare the libertarian and efficiency arguments very nearly merge with one another. If welfare simply IS the satisfaction of expressed preferences then choice and welfare are very nearly synonymous. Notice, however, that there is nothing about the structure of the libertarian position that requires that one take such a position on the meaning of welfare. One might acknowledge the reality of welfare-reducing choices, while prioritizing choice over welfare normatively. Notice that in this argument there is nothing special about markets. They are simply a locus of choice, but so are many other institutions and practices from love affairs to soccer clubs. Thus the libertarian argument.
The third argument is a defense of markets as markets. Read the rest of this post »
July 28, 2010 at 10:48 pm
Posted in: Contract Law & Beyond
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A Contracts Chestnut for Tort Theorists
posted by Nate Oman
Of late I have been reading and thinking about the theory of private law, mostly torts. This is a bit odd as I am generally a “contracts guy” not a “torts guy.” What interests me for now, however, are those features that contract shares with tort, in particular the bilateralism of damages (wrongdoers pay victims) and private standing (the law empowers victims to act against wrongdoers rather than providing third-party enforcement or the like). One of the big debates in this area is between corrective justice theorists — like Ernest Weinrib and Jules Coleman — who see tort law as vindicating a duty compensation and civil recourse theorists — like Ben Zipursky, John Goldberg, and my soon-to-be colleague Jason Solomon — who see tort law as providing a means for victims to act against tortfeasors. I tend to think that the civil recourse folks have the upper hand in this debate. Indeed, I have even offered a modified civil recourse theory of contractual liability based on the dismemberment of goats. It occurs to me that a venerable debate from contract theory might be of use to the torts guys. Read the rest of this post »
July 16, 2010 at 11:01 am
Posted in: Contract Law & Beyond, History of Law, Legal Theory, Tort Law
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Oman and Meese on Feldman and Progressive Constitutionalism
posted by Nate Oman
My colleague Alan Meese and I have a piece up at NRO responding to Noah Feldman’s recent NYT Mag article arguing for a new progressive constitutionalism. Read and enjoy!
July 5, 2010 at 11:38 am
Posted in: Constitutional Law
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Evidence that Academia is an Aristocratic Country
posted by Nate Oman
Academics make less money than they would probably be able to make were they not academics. This is certainly true for the vast majority of law professors, most of whom were educated at elite law schools and often have had professional experience in the upper levels of the legal profession. Yet despite the fact that they make less money than their non-academic professional peers, law professors still work hard (although not as hard as say junior associates at Skadden). This morning I was reading De Tocqueville, and I came across this passage, which could be applied, I think, to much of academic work: Read the rest of this post »
July 2, 2010 at 12:31 pm
Posted in: Law Practice, Law School (Scholarship)
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Book Review: Gordon S. Wood, Empire of Liberty
posted by Nate Oman
Gordon S. Wood, Empire of Liberty: A History of the Early Republic, 1789-1815 (New York: Oxford University Press, 2009)
This is a big book by one of the greatest living scholars of the early Republic. It is worth reading. Gordon Wood, of course, is the author of The Creation of the American Republic and numerous other works on the founding period. Empire of Liberty weighs in at 738 pages and is part of the not yet complete Oxford History of the United States. This volume covers the period from the adoption of the Constitution to the end of the War of 1812. It is a marvelous synthesis of contemporary scholarship on the period and a well-spent career by a careful and imaginative scholar. Enough with the superlatives and adjectives.
The book is organized as a narrative, with a nice mix of a somewhat gossipy treatment of elite politics interspersed with chapters on social history. On the social history front, the book is strong on economics and (thankfully from my point of view) religion. If there was one subject where I wasn’t entirely impressed, it was his treatment of military history. Having gone through a Civil War history phase as an adolescent, however, I suspect that I probably have a higher tolerance for the analysis of troop movements, battles, and logistics than the ordinary reader. Also, the volume has a good bibliographic essay, which is extremely useful as a scholar from another discipline who might be interested in using some of the literature on this period.
Wood has two chapters that will be of special interest to lawyers and legal scholars. The first is “Law and an Independent Judiciary” and the second is “Chief Justice John Marshall and the Origins of Judicial Review.” Both of these chapters are heavily weighted toward federal constitutional law and the rise of the Supreme Court. However, in comparison to Howe’s What Hath God Wrought (the next volume in the Oxford History and another book that is worth reading), Wood has a more in depth discussion of legal developments beyond the Supreme Court. His discussion of the intellectual roots of judicial independence in eighteenth-century English legal thought is excellent, as is his discussion of the politics of debtor-creditor law in the early Republic. Finally, while I feel called upon to carp at the way that developments in the common law consistently get relegated to second place vis-a-vis constitutional law in most histories, I was fascinated by Wood’s discussion of Marshall’s maneuverings against Jefferson. My employer is pleased to claim both men as alums (although the claim is stronger in the case of Jefferson than Marshall), but as between the two, Marshall comes across as the more pleasant, canny, and ultimately wise man.
In terms of political history, Wood organizes his narrative around the rise of Jeffersonian democracy. It’s a story in which the losers are, to my mind, ultimately much more interesting than the winners. One of the ways that Wood illustrates this story is through a series of portraits of middling political figures — congressmen, unsuccessful senators, successful grandees in state legislatures, and the like — which make for a nice contrast to a story dominated by Washingtons, Adamas, Jeffersons, and Hamiltons. I found myself sympathizing — if not entirely agreeing — with curmudgeonly Federalists like James Fenimore Cooper who had to live on in the increasingly crass and democratic society that Jefferson helped to midwife even if it was not ultimately his creation. Indeed, at the end of the book Wood provides a striking portrait of Jefferson in retirement, increasingly crotchety, disoriented by the grasping hucksterism of nineteenth-century America, and, perhaps most pathetically, more and more apologetic for slavery while still desperately clinging to the increasingly threadbare mantle of enlightenment prophet of human freedom. Indeed, Wood ends the volume with a peroration on the evil of slavery and its blight on the nation. It is, I think, the least compelling prose in the book, but there is no denying the evil that it condemns or the way in which it came to warp so much of American political, social, and intellectual life.
June 21, 2010 at 9:36 am
Posted in: Book Reviews, History of Law
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Epstein, Tort, and Sticking it to BP
posted by Nate Oman
Richard Epstein mounts a defense of tort liability in today’s WSJ. I wish that a defense of civil liability was a stronger element of free-market politics in this country, so I’m happy to see Epstein make the case for tort in a place such as the WSJ. Epstein calls for “a no-nonsense liability system that fastens full responsibility on the parties who run dangerous operations, no excuses allowed.” I am not a tort aficionado, but I wonder whether drilling for oil counts as an ultrahazardous activity exempt from the ordinary regime of negligence liability or if this is simply Epstein advancing his preference for a regime of strict liability. He goes on to write:
A tough liability system does more than provide compensation for serious harms after the fact. It also sorts out the wheat from the chaff—so that in this case companies with weak safety profiles don’t get within a mile of an oil derrick. Solid insurance underwriting is likely to do a better job in pricing risk than any program of direct government oversight.
I agree with Epstein that insurance companies coping with the risk of a tough liability regime are likely to be much better monitors than government agencies coping with the risk of political embarrassment. I do think, however, that Epstein’s article is rather too optimistic that tort can so easily serve the multiple purposes that he assigns to it. By providing victims with what amounts to a form of insurance through the tort system we create another kind of moral hazard, one that is less easy to manage through the kind of monitoring that private insurance provides because the relationship between insured and insurer in the tort regime isn’t contractual. Furthermore, as a system of compensation tort law has a tendency toward feast and famine for victims. This may mitigate concerns about moral hazard, but if we are interested in compensation for victims (as opposed to plaintiff’s lawyers) this is a problem.
There is an important aspect of tort liability that doesn’t make an appearance in Epstein’s argument. Liability does more than provide compensation and internalize costs, laudable as those goals are. As Benjamin Zipursky and John Goldberg have argued it also gives those who have been harmed a way of acting against those that have harmed them. Tort lets those who have been hurt by BP strike back, asserting themselves are more than passive objects of harm or compensation. If the proponents of civil recourse theory are to be believed — and I find myself more than a little persuaded — this is a goal worthy of attention in its own right.
Put more simply, one of the reasons we want tort law is so that those who it has hurt can stick it to BP for the harm they have suffered.
June 16, 2010 at 9:50 am
Posted in: Tort Law
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The Founders and the Tea Party
posted by Nate Oman
I’ve found it interesting to see the way in which the tea party movement (and some of my neighbors who are involved in it) invoke the Founders and the constitution. Without exception every law professor with whom I have talked treats these tropes with derision, seeing the tea party movement as a bit of reactionary hysteria or worse. I think, however, that there is a deep affinity with some of the ways of political thinking one sees among at least some tea partiers and the political thinking of the founding generation.
First, many tea partiers invoke the constitution in political debate. This may seem unremarkable, but it does gesture toward a certain view of politics that is both genuinely congruent with the founders political thinking and, I believe, deeply mistaken. Gordon Wood has written about what he calls the “adjudicative politics” that were held up as an ideal by the American revolutionaries and the politicians of the early republic. In this vision, there is a single, unitary public good and the job of statesmen is to act as kind of super-adjudicators, applying known principles of good government to particular issues. As Wood documents, this vision of politics broke down in the 1790s and 1800s as it became clear that there was no widespread agreement on the meaning of the public good. Rather politics, far from being an exercise in adjudication, consisted of a continuous debate about the content of the public good and – more unsettling to the adjudicative model – the bargaining between constituencies over claims to political power.
So what does this have to do with the tea partiers? Read the rest of this post »
June 10, 2010 at 9:43 am
Posted in: History of Law, Politics
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Suppressing Speech and Suppressing Dueling
posted by Nate Oman
Of late I have been doing some research on the relationship between dueling and litigation in the 18th and 19th centuries. An integral part of the Code Duello was the practice of “posting someone a coward.” If a gentleman refused to give satisfaction on the field of honor to a gentleman he had offended, then the victim would print broadsides or take out newspaper advertisements announcing that so-and-so, previously thought a gentleman was in fact a coward. In an effort to suppress the practice of dueling, the Texas legislature adopted the following law:
If any person or persons hall, in any newspaper, or handbill, written or printed, publish or proclaim any other person or persons as a coward or cowards, or use other opprobrious and abusive language for not accepting a challenge, or fighting a duel, such person or persons so offending shall, on conviction, be punished by a fine not exceeding five hundred dollars, and imprisonment in the common jail of the county not exceeding sixty days, at the discretion of the court.
I haven’t seen anything about convictions under this law. Notice, that it is drafted so that it probably sweeps up more than simply “posting” someone for refusing a challenge. Journalists wishing to comment on the courage of Texas politicians refusing a challenge should proceed cautiously.
June 9, 2010 at 11:02 am
Posted in: Uncategorized
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The Unbearable Lightness of Empathy
posted by Nate Oman
As Kagan progresses through the Kabuki of the confirmation process we can expect to hear her supporters invoke the idea of empathy as a kind of liberal counterpoint to Roberts’s umpire analogy. The more I think about empathy and judging, however, the less I think that it has any substance at all.
In the case of Sotomayor, empathy was associated with identity politics. There was some ineffable something about being a wise Latina that gave Sotomayor special insight into the way that the law effects “ordinary people.” In Sotomayor’s case one could at least construct a facially plausible story about her biography in which her experience provided some insight into “ordinary people” outside of her legal expertise.
Not so with Elena Kagan.
There is nothing in her biography to suggest any special insight into the lives of “ordinary people.” The Upper West Side (my experience with native New Yorkers is that some non-trivial percentage of them take a positive pride in NOT understanding America beyond the five boroughs), prep school, Princeton, Oxford, Harvard Law School, a Supreme Court clerkship, work at an elite law firm, the University of Chicago, the Clinton White House, HLS again, and the Solicitor General’s office. There’s nothing in there that screams, “Special connection with the poor and the downtrodden, or even with the middle class and doing fine.” From what I’ve seen, Kagan is an intelligent and decent person. She may well be able to see the world from the perspective of “ordinary people,” but if she does so it is by an act of imagination rather than memory.
None of this will keep folks from lauding Kagan’s “empathy.” If empathy is no longer tied to biography and identity politics is there anything left of it? The answer, it seems to me, is “Not much.” When empathy is invoked in contemporary debates about the judiciary, I think it’s best to simply see it as a gesture toward a set of substantive positions. To be empathetic is to be solicitous of the state in its role as regulator but less so in its role as defender of national security. It means a somewhat more pro-defendant position on criminal procedure. It means a preference for national rather than state government. Above all else, I suspect that it means holding the kinds of opinions that we all expect Elena Kagan to hold on the various cultural arguments — gay rights, abortion, etc. — that form the detritus of the sexual revolution. None of this, however, really has to do with empathy. Rather, it simply strikes me as a substantive vision of the relationship of the state to individuals, businesses, and local communities.
May 14, 2010 at 10:45 am
Posted in: Supreme Court
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My Concern With Kagan
posted by Nate Oman
So President Obama has nominated Elena Kagan to the Supreme Court. He certainly could have done worse. I am not without concerns and chief among them is that Kagan is a scholar of public law. Given that the vast majority of the Court’s docket concerns public law this may seem like an odd concern. I certainly prefer the study of contract law to administrative law, but the Supreme Court is seldom called on to decide private law issues while public law cases form its bread and butter.
With the exception of a brief stint in private practice, Kagan has spent her entire career either in government or else in academia studying the processes of government regulation. She shows little academic or professional interest in business. This is important because while public regulation makes up the bulk of the Court’s docket, private businesses are overwhelmingly the target of that regulation. Everything in Kagan’s career, however, suggests that she is intellectually geared to look at the regulatory process from the government’s point of view. For example, in law school I had an advanced seminar on administrative law from Kagan. It was an interesting class, mainly focused on the competition between bureaucrats and political appointees. In our discussions businesses were always conceptualized as either passive objects of regulation or pernicious rent-seekers. Absent was a vision of private businesses as agents pursuing economic goals orthogonal to political considerations. We were certainly not invited to think about the regulatory process from the point of view of a private business for whom political and regulatory agendas represent a dead-weight cost.
At this point we can expect the obligatory dance around abortion rights and other hot button issues. We can expect a discussion of Kagan and the military. (I’ve got ideas for a post on the unfortunate disconnect between the culture of law schools and the culture of the military; stay tuned.) We can expect a rehash of the merits of umpires versus empathy. While discussing empathy, however, it’s worth thinking about the problems of a Court that is increasingly packed with justices who have had limited practical or intellectual engagement with the world of business.
May 10, 2010 at 5:10 pm
Posted in: Supreme Court
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An Honorable and Virtuous Bleg
posted by Nate Oman
I am currently working on a project looking at private law and concepts of virtue. In particular, I am interested in the idea that acting to defend one’s honor or dignity reflects a certain kind of moral virtue. I’m looking for sources — literary, philosophical, or historical — that examine the disposition to defend one’s honor as a virtue. If you have suggestions, please let me know either in the comments or by emailing me at nate dot oman at gmail dot com. Thanks!
April 16, 2010 at 9:42 am
Posted in: Uncategorized
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In Defense of Umpires
posted by Nate Oman
We’ve been treated of late to a fair amount of commentary on umpires and supreme court justices, most of it dismissive. Chief Justice Roberts’s remarks during his confirmation hearings about judges as umpires has been attacked in the pages of the New York Times by Geoffrey Stone, for example, as either naive or — more likely — dishonest. I’m not, however, convinced that the umpire analogy is the jurisprudential gaff that those among the con law chattering class have been making it out to be. Read the rest of this post »
April 15, 2010 at 2:26 pm
Posted in: Constitutional Law, Supreme Court
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Bargaining in the Shadow of God’s Law
posted by Nate Oman
For those who care about such things, I have a new paper up on SSRN entitled “Bargaining in the Shadow of God’s Law: Islamic Mahr Contracts and the Perils of Legal Specialization.” This one looks at the treatment of Islamic marriage contracts by American courts, and was written for Wake Forrest’s recent symposium on context and contract law. Enjoy! (The abstract is after the jump) Read the rest of this post »
April 12, 2010 at 10:19 pm
Posted in: Contract Law & Beyond, Religion
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You Don’t Know if That is a Big Number
posted by Nate Oman
This post is not a big deal, but I did want to vent briefly about one of my pet peeves: Citing raw profit numbers as evidence that some corporation is making huge profits.
How often do you read a news story in which some journalist or activist makes a claim that XYZ Corporation is extremely profitable because they recently had $253.7 million (or some other big number) in profits? Such numbers, of course, tell us exactly nothing about how profitable XYZ Corporation is. Sure, $253.7 million is a lot of money to me, but I have no idea if it is a lot of money in this context. Furthermore, without a bunch of other information there is no way that I can tell if $253.7 million is a lot of money. One possibility might be to site revenue statistics to me. For examples, if they had profits of $253.7 million on revenues of $10 billion this means that they had a profit margin of about 2.6 percent which is not much to write home about. On the other hand, profits of $253.7 million on a $1 billion in revenues suggests a profit margin of something like 25 percent, which is pretty profitable. Of course, even looking at profit margins isn’t as probative of profitability as one might assume. One still has to ask the question of how much capital is at issue. For example, if you get $253.7 million on $1 billion in revenues, you have a nice looking profit margin of 25 percent. On the other hand, if there is $25 billion in capital invested in the business, then we are looking at a return of something like 1 percent on the capital, which isn’t really all that impressive. Of course, even this number doesn’t fully capture stuff like risk or contingent liabilities. This is why I get testy when some politician or pundit cites some impressively large number and then opines about how very, very profitable business X is. The truth of the matter, I suspect, is that the pundits and politicians have no idea whether or not business X is profitable. Scarier still, they probably have no idea that they have no idea how profitable business X is. It really bugs me.
Okay, I feel better for having gotten that off my chest.
April 8, 2010 at 8:00 am
Posted in: Uncategorized
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Church-owned Cows and Inflation
posted by Nate Oman
I recently taught Sherwood v. Walker, the famous case involving a Michigan cow named Rose 2nd of Aberlone, as well as a number of other mistake cases in contracts dealing with cows. I’ve got bovine jurisprudence on the mind. It seems that the same is true for Eugene Volokh, who recently noted a case involving a “church owned cow.” The cow in question was owned by the Mormon Church and seems to have negligently collided with a motorcycle. In the interests of extending our jurisprudential understanding of cows, I can’t resist adding another twist to the church-owned cow story.
The Mormon Church’s involvement in agriculture is a legacy of the nineteenth century practice of Mormons paying tithing in kind to the church. As a result of this practice, in the nineteenth century, the church acquired large herds of cattle as well as other food stuffs. It then issued so-called “tithing scrip,” which was in effect private currency. The holder of scrip could redeem it for foodstuffs, including beef, at church storehouses. The scrip then circulated as money, in effect providing liquidity to the perpetually cash starved economies of the Intermountain West in the nineteenth century. Because the currency was in effect backed by cows, however, it was subject to some odd monetary pressures. For example, when a particularly harsh winter killed off a large proportion of the church’s cattle herds, it was forced to reduce the purchasing power of tithing scrip at church storehouses because there simply wasn’t as much beef available as previously. The result was price inflation as the value of the scrip declined.
As part of its efforts to raise revenue during the Civil War, the U.S. government passed a series of banking acts designed to decrease government borrowing costs. All nationally chartered banks were required to hold their reserves in the form of treasury bonds, and non-federally chartered institutions were hit with a heavy tax on the notes that they issued. The effect was to slap a punitive tax on any bank depositor who did not loan his or her savings to the U.S. government. During the 1880s federal prosecutors in Utah decided that the various scrip-issuing bodies of the Mormon church were subject to this tax, and demanded decades of back taxes, eventually killing off the scrip and replacing it with currency issued by federally chartered banks.
Taxes. Regulation. Inflation. Cows. Some things never change.
April 7, 2010 at 10:39 am
Posted in: Agricultural Law, Contract Law & Beyond, Food, History of Law, Just for Fun, Religion
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William & Mary Faculty Response to Virginia’s AG
posted by Nate Oman
A quick follow up on my post last week on the Virginia Attorney General’s claim that all anti-discrimination policies adopted by state schools that included sexual orientation were void (and the Governor’s repudiation of that position). The William & Mary Faculty Assembly adopted the following statement in response to events: Read the rest of this post »
March 17, 2010 at 12:12 pm
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More on the Mythology of Disaster
posted by Nate Oman
Awhile back we had a guest post from Lisa Grow Sun (BYU) on the various myths surrounding disasters and the challenges that they pose for policy makers who are grappling with events such as we’re seeing in Haiti and Chile. For those who are interested, Lisa has now put her most recent paper on the topic up on SSRN. Here’s the abstract
This Article considers the legal implications of perhaps the most important disaster myth: the myth that natural disasters produce widespread looting and violence. The Article examines a number of unfortunate legal consequences of the myth, including deployment of military troops in a law enforcement, rather than humanitarian, capacity; distortion of response priorities outlined in disaster plans; and imposition of restrictions on freedom of movement and other basic rights. Ultimately, the Article concludes that the deleterious effects of the myth on our disaster laws can best be countered by constraining official discretion to overemphasize security risks in immediate response decisions, rejecting calls to pass broad looting laws that can reflect and perpetuate the myth, and reforming the structure of federal disaster agencies by removing the Federal Emergency Management Agency from the Department of Homeland Security and reestablishing it as a cabinet-level agency.
As they say, download it while its hot!
March 10, 2010 at 3:19 pm
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Wedding Repo
posted by Nate Oman
Each year, when I teach reposession in my secured transaction class, I show videos of repos and we discuss whether they comply with the dictates of Article 9. This one is my new favorite. It presents the question of whether a reposession that causes violence to the debtor by a third party constitutes a “breach of the peace.” I love my job.
March 10, 2010 at 11:43 am
Posted in: Bankruptcy, Consumer Protection Law, Contract Law & Beyond
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Discrimination, Virginia’s Colleges, and the Attorney General’s Letter
posted by Nate Oman
The Attorney General of Virginia, in his infinite wisdom, has issued a letter to all of the Commonwealth’s universities and colleges informing them that their policies against discrimination on the basis of sexual orientation must be abandoned. As a proud member of the faculty of Virginia’s oldest public university and first law school, I’m interested. At the outset, let me say that I am not an unalloyed fan of antidiscrimination laws, and I am certainly willing to be persuaded by the sorts of libertarian arguments against such laws that have been put forward by Richard Epstein. Discount my opinion accordingly. I also can’t claim to be an expert in the law of higher education or even in the particular authorities cited by the Attorney General. That said, I don’t find the AG’s legal reasoning at all persuasive.
The crux of his claim is that under Virginia law there is no public policy against discrimination on the basis of sexual orientation. Accordingly, he claims that in the absence of specific authorization by the General Assembly Virginia’s colleges and universities are prohibited from making rules on the subject. On the first point, I think that the AG actually has a fair argument. Sexual orientation is not included in the state’s antidiscrimination laws and several authorities have suggested that counties and municipalities lack the authority to pass such statutes on their own. This is all well and good as far as it goes, but all of the authorities cited by the AG go to the question of government entities regulating discrimination by non-government entities.
This, however, all strikes me as rather beside the point when it comes to the antidiscrimination policies at issue. When The College of William & Mary prohibits discrimination on the basis of sexual orientation (or religion or ethnicity or anything else) it is not trying to advance the state’s public policy with regard to discrimination. Indeed, it is not purporting to regulate discrimination by others at all. The College’s policy, for example, has no effect on the ability of a private business in Williamsburg to discriminate. Such questions are – rightly – left to the General Assembly. Rather, The College’s policy is directed at its own operations. As the AG’s letter acknowledges the General Assembly has explicitly granted to the Commonwealth’s colleges and universities the right to promulgate regulations governing their affairs. Furthermore, Virginia’s courts have held that the Commonwealth’s schools have such power inherently as an incidence of their existence. To be sure, the General Assembly could pass a statute prohibiting Virginia’s colleges and universities from promulgating particular kinds of antidiscrimination policies. The state’s elected representatives, however, have declined to pass such a law.
In his letter, the AG noted that our previous governor tried by executive order to declare that the public policy of the Commonwealth of Virginia opposes discrimination on the basis of sexual orientation. Our previous AG – and current governor – issued an opinion stating that the governor lacked the unilateral power to declare such changes in public policy, rather any such policy had to emerge from the legislation adopted by the General Assembly. I don’t know the details of that particular controversy, but in broad outlines this conclusion strikes me as sensible. An executive official cannot unilaterally declare what public policy does or does not require as a matter of law. The same is true when the executive official is the Attorney General.
Again, admitting that this is not my area of expertise and that I’ve done no extensive research on the question, the AG’s legal position just doesn’t strike me as plausible.
March 9, 2010 at 3:20 pm
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