Author: Robert Ahdieh

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International Economic Law in a Time of Change

Back on the international front, some readers may be interested in the biennial conference of the International Economic Law Interest Group, of the American Society of International Law.  Chaired by Susan Franck and Greg Shaffer, they are planning what should be a wonderful conference, at the University of Minnesota, from November 18-20, 2010.

Under the theme of International Economic Law in a Time of Change: Reassessing Legal Theory, Doctrine, Methodology and Policy Prescriptions, they have issued the following call for papers:

The start of the second decade of the twenty-first century is witnessing a confluence of events affecting international economic law that calls for re-evaluation. The international context has radically changed. Most analysts contend that we are shifting toward a multi-polar world in light of economic transformations in China, India, Brazil, and other developing and transitional countries, coupled with economic stagnation in the United States and Europe which are beset by a financial crisis and embroiled in foreign wars and security concerns. These developments have arguably complicated international economic governance, yet other factors–such as the current financial crisis–press consideration of new forms of international economic governance, such as the G-20. Global economic interdependence, exemplified by global production and supply chains, calls for sustained attention to international economic law and institutions.

With this backdrop, the November conference will organize sessions that address the full range of international and transnational economic law. We encourage scholars to submit papers or panel proposals related to trade, investment, international financial regulation, transnational private law, and development law, as well as their intersection with social regulation such as over global warming, labor rights and consumer safety. This call for papers welcomes submissions that provide new analytic frameworks, reassess legal theory, evaluate developments in legal doctrine, engage in empirical analysis of the way international economic law operates, and provide guidance for policymakers, regulators and adjudicators in this time of international economic change.

Paper and panel proposals should be submitted by July 30, 2010, to 2010IELconference@gmail.com.  More information available here.

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Brooks and the New Economics

Apropos of Larry’s recent post (and paper) on economic analysis, David Brooks had an interesting op-ed in yesterday’s New York Times, under the headline “The Return of History“.  In the piece, Brooks offers a history of the discipline of economics, in five acts, culminating in the following:

Economics achieved coherence as a science by amputating most of human nature. Now economists are starting with those parts of emotional life that they can count and model (the activities that make them economists). But once they’re in this terrain, they’ll surely find that the processes that make up the inner life are not amenable to the methodologies of social science. The moral and social yearnings of fully realized human beings are not reducible to universal laws and cannot be studied like physics.

Once this is accepted, economics would again become a subsection of history and moral philosophy. It will be a powerful language for analyzing certain sorts of activity. Economists will be able to describe how some people acted in some specific contexts. They will be able to draw out some suggestive lessons to keep in mind while thinking about other people and other contexts — just as historians, psychologists and novelists do.

In something of that spirit, I might flag a recently completed (and submitted) paper of mine, entitled Beyond Individualism in Law and Economics.  In it, I argue that law and economics – and, in a sense, economics more generally – must recognize important challenges to its methodological orientation to individuals, just as it has recognized, over the last twenty years, the limits of its assumption of rationality.  Once the discipline does so, I suggest, it will invite far broader insights, akin to those offered by the behavioral revolution in psychology and economics.

The abstract, for those interested, is below the fold.

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Dispatches from the International Front

I write from the 104th annual meeting of the American Society of International Law, on the theme of International Law in a Time of Change.  I’ve only just arrived, so can’t yet report on much of substance.  As to the most important dimension of conference attendance, on the other hand, I’ve already seen previous Concurring Opinions guest bloggers Bill Burke-White and Anupam Chander, and am now sitting across a table (in the bar, of course) from David Zaring – who is furiously typing on his laptop, presumably writing a post for The Glom.

Elsewhere on the international front, Jim Maxeiner recently posted (to the Comparative Law listserv) the following quote from Chief Justice Roberts:

“I like my wine French, my beer German, my vodka Russian, and my judicial system American.”

Apparently, Roberts stated as much – not at a cocktail party – but at a panel discussion at the University of South Carolina.  It was clearly intended, as such, for public consumption.

Perhaps I’m over-reacting, but does this seem like the guy who said he was just a neutral umpire, who would call them like he saw them?

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Can We Teach?

Reading Alfred’s posts on choosing a law school, I got to thinking about the quality of teaching at any given school, as a factor in that choice, and of an article I read in last Sunday’s New York Times Magazine, on Building a Better Teacher.

The piece describes, in essence, the effort to improve the quality of primary and secondary education in the United States, by more carefully/fully training teachers in how to teach.  By contrast, it counsels, merely incentivizing teachers (whether with the carrot of merit pay, or the stick of dismissal/school closure) fails to get at the root of the problem.  Teachers, thus, need to be taught how to teach.

The teacher trainer profiled, for example, suggests that the generally derided and dismissed issue of “classroom management” is actually foundational to whatever learning does (or does not) occur in the class.  As the article puts it, “students can’t learn unless the teacher succeeds in capturing their attention and getting them to follow instructions.”  (By way of empirics, I might note, the article cites data to certain that the students of the best teachers get 18 months of material, for each year in class, while those of the worse teachers get only 6 months!)

What about those of us in law school teaching, though?  Can we teach?  Is there any reason to believe that the skills that get us our teaching appointments are well correlated with teaching skills?

I’m doubtful there is, though I might perhaps be convinced otherwise.  Even if there is some such correlation, however, wouldn’t it still be useful to think about relevant training in classroom instruction, for law students thinking about going into teaching – or perhaps at least for those who actually end up there?  Isn’t that especially appropriate if, as the research reported in the article suggests, evidence of natural teaching “ability” aren’t highly correlated with student success?

One need not abandon a commitment to scholarship as the most critical metric in appointments, in promotion, and even in evaluating the overall “success” of a law professor, thus, to recognize that there are relevant skills to teaching – and perhaps to law teaching in particular – that we ought to know.

If so, how might we go about accomplishing as much?  By having a teaching “track” in law school, which would include some training in teaching?  Perhaps with some sort of intensive summer program, in which newly hired teachers would enroll for a time before embarking on their teaching careers?

No single solution would be perfect, of course.  I’m reminded, though, of my complaints to a colleague, in my first year of teaching, that I wasn’t sure I was doing a particularly good job at teaching.  “I’m sure they love you!” he responded.  Perhaps they do, I remember thinking, but that need not mean I was doing a good job.

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Rising From the Ashes, Again

More later on my quietude of the last week - including on the challenges (and wisdom…?) of making multiple law review submissions in a single season – but for now, an interesting post from the New York Times‘ Economix blog.

It’s not every day that Atlanta makes it into the Times.  (I wasn’t quite sure the editors had heard of it!)  A near-paean to it under the headline Betting on Atlanta was thus a welcome surprise.  And coming, as it did, under the byline of Harvard economist Edward Glaeser- whose work I’d previously known only via his collaborations with Andrei Shleifer and the rest of the LLSV crowd on legal origins – was icing on the cake.

Beyond the gratification of my instincts that Atlanta has become a great city on many counts, including its diversity and integration, its embrace of globalization, its cuisine and arts scene, and the quality of its urban living more generally, though, a few points from Glaeser’s lengthy post particularly stood out.

One was the peculiarity of the city’s geography.  Unlike most major metropolitan areas in the country, Atlanta does not sit on a significant waterway.  It emerged in the mid-1800′s, instead, out of the railroad depot built at the intersection of a handful of significant train lines.  (Hence its original name, Terminus.)

Even more interesting, I thought, was the strikingly high level of education in the city – a notable fact, given Georgia’s perennial lagging in many measures of primary and secondary school education.  Between units of the University of Georgia, Georgia State, Morehouse, Spelman, Georgia Tech, Emory, and other colleges and universities, though, it turns out that nearly 43 percent of adults in the city have a college degree.  Doesn’t sound like all that much?  Compare it to 27 percent nationwide, and only 41 percent in the city of Boston.

Finally, there was Glaeser’s insight that a critical feature in Atlanta’s growth and success to date – and a promising indicator supporting his “bet” on Atlanta – was the availability of housing.  Given no natural borders limiting the construction of new housing and, as Glaeser reports, fairly liberal zoning rules, housing prices could remain relatively low, even as the city experienced one of the largest population influxes of any city in the country over the last decade.

All told, these and other factors add up to Glaeser’s happy conclusion:  “Smart money never bets against the ability of a huge concentration of smart people to weather an economic storm.  Don’t count Atlanta out.”

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The Globalization of Securities Regulation: Competition or Coordination?

Thanks to Danielle, Dan, and entire Concurring Opinions team, for having me back for a return stint.

I write from the University of Cincinnati Corporate Law Center’s 23rd Annual Symposium, on the subject of The Globalization of Securities Regulation: Competition or Coordination?

Our host is Professor Barbara Black, and other panelists include Bill Bratton, Chris Brummer, Hannah Buxbaum, Eric Chaffee, Andrea Corcoran, Steve Davidoff, Jim Fanto, Robert Patterson, and my colleague, Fred Tung.

I mention all this because, for those who may be interested, the symposium is being webcast as I type (and listen to Hannah’s presentation, on The ‘Global Enterprise’ in Cross-Border Securities Litigation).  You can find it here:

https://www.uc.edu/ucvision/event.aspx?eventid=245

And if you have questions you’d like raised, you can e-mail them to Barbara here: corporatelawsymposium@law.uc.edu.

Hope you can join the discussion!

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Intersystemic Governance as the New Governance

[A belated post, which I'm finally putting up, long after the final bell has tolled on my (enjoyable as ever!) visit...]

In a post a few weeks back, Mike Dorf cites ongoing debates over the appropriate place of Shari’a law within the British legal system, to highlight a broader phenomenon of interaction across legal regimes. As he constructs the settings of relevant interest:

A and B are interacting legal regimes, each claiming some authority to make binding norms for some of the same people; A claims that in case of clear conflict with B, A prevails; B claims that in cases of clear conflict, B prevails; although this looks like a recipe for eventual all-out conflict, A and B can co-exist indefinitely through a variety of mediating mechanisms.

At a certain level, this might be understood to describe the dynamic at work in any federal scheme of governance. As I see it, though, the critical question in these cases is how we think about patterns of overlapping authority across jurisdictional lines. In the conventional account of federalism – and perhaps the law generally – the motivating project might be seen as one of line-drawing. The law’s task is to demarcate distinct bounds of jurisdictional authority. In this way, it serves the purportedly salutary function of minimizing overlap, and therefore conflict. Dorf, by contrast, suggests the growing degree to which complexity, overlap, and conflict cannot be avoided. Rather, they must – and even should – be embraced.

As I have had occasion to describe the idea:

This [emerging] project lies not in line-drawing, distinguishing, or simplifying. To the contrary, it explores—and even encourages—overlap, interdependence, and attendant complexity. From this distinct regulatory perspective, the goal is not to identify the single regulatory actor best suited or most appropriately charged with responsibility for a given entity or subject matter. Rather, multiple regulators are embraced as having a shared—if both competing and cooperating—place in a more inclusive and all encompassing regulatory regime.

In emphasizing the growing importance of such patterns of interaction, I have been struck by the wide range of recent work that speaks – directly or indirectly – to such dynamics of engagement across regulatory regimes. This is evident, from even a cursory (and incomplete) listing of relevant work:

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The Dukes of “Hazard”

As the number of bailouts, the scope of bailouts, and talk of further bailouts have all increased over the last month, culminating in yesterday’s announcement of yet another in the asserted “Mother of All Bailouts” series – of Fannie Mae/Freddie Mac, then of AIG, and now of Citigroup – one thing has been missing.

Modifying the title of Tom Lehrer‘s fond recollection of Vice-President Humphrey, I’ve been wondering, “Whatever Became of Moral Hazard?”

Now no one would ever accuse me of being an empiricist, but this surely seemed a ripe question for quantitative study. Was it simply my imagination that no one seemed to be talking about the moral hazards attendant to young, newly appointed staff members doling out cash on the front steps of the Treasury Department? Perhaps my eyes were simply glazing over every time I came to the paragraph in the New York Times or Wall Street Journal pieces where they quoted some obscure academic economist, noting the risks attendant to bailouts?

Or perhaps not.

Consider the results of my exhaustive search for the term “moral hazard” in articles in Westlaw’s “USNEWS” database, of U.S. papers and news magazines, conducted yesterday morning:

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Head Counting on the U.S. Courts of Appeals

Others have already commented on it (here and here), but I wanted to add my belated thoughts on the Wall Street Journal opinion piece on judicial appointments by Steve Calabresi, of some weeks back. In it, Calabresi outlines a true parade of horribles (including “the mass freeing of criminal defendants”) that might befall on the country, if Barack Obama were to win the presidency and make significant appointments to the U.S. Courts of Appeals. (He was writing the week before the election.)

What struck me more than Steve’s enumeration of dangers and threats, however, was an earlier comment in the piece.

After offering an audit of the membership on the D.C. Circuit by appointing president, and suggesting the likelihood that Obama will make a substantial number of appointments to that court, he states:

“The net result is that the legal left will once again have a majority on the nation’s most important regulatory court of appeals.”

And he continues, turning to the balance of the courts of appeals:

“The balance will shift as well on almost all of the 12 other federal appeals courts. . . . Circuit majorities are likely at stake in this presidential election for the First, Second, Third, Fourth, Fifth, Sixth, Seventh and Eleventh Circuit Courts of Appeals.”

I think my legal realist credentials are as good as the next guy, but what are we to make of such talk of “majorities” on the courts of appeals – as measured by the imprecise heuristic of appointing president, no less? Do federal court of appeals judges caucus by party – or even political preferences, for that matter? If so, who is the Democratic whip on the Second Circuit? On the Ninth!?!

I share much of the general sense of doubt about the possibility of judicial dispassion and neutrality, and about the notion of judges as simply “umpires.” I suspect we go much too far, however, in conceptualizing the collective decision-making of the courts of appeals – or even the Supreme Court, I suspect – in terms of voting majorities of one party versus the other.

Such an approach is not merely inaccurate, however, but also harmful to public perception of the courts – and of the law generally. Perhaps especially because it perpetuates itself.

If Steve can tell a story of threatened Democratic majorities on nine of the thirteen courts of appeals, thus, The New York Times can respond in kind, as it did:

“Republican-appointed judges, most of them conservatives, . . . control 10 of the 13 circuits, while judges appointed by Democrats have a dwindling majority on just one circuit.”

Not too sound too schoolmarm-y about it, but we really shouldn’t be talking this way.

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A Cautionary Tale

A perhaps cautionary tale for law professors considering the possibility of banning laptop computers from the classroom – let alone unexpectedly deviating from the norm, to direct students to close their laptops for a particular discussion.