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 [...]]]> [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:

Among the most notable thinkers in this area has been Paul Berman, whose application of the framework of legal pluralism to these questions – particularly in transnational settings where he has identified patterns of “cosmopolitan pluralism” – has been equally striking for both its breadth and its depth.

Others writing on such interactions in the transnational sphere have included Alex Aleinikoff, George Bermann, Grainne de Burca, Vicki Jackson, Ben Kingsbury, Joanne Scott, Anne-Marie Slaughter, and others. My work in this area, meanwhile, has identified distinct patterns of engagement of international tribunals with domestic courts, has explored the interaction of national and transnational regulatory institutions, and has considered the implications of growing state and local engagement with foreign affairs and international law for how we understand the relationship of sub-national, national, and international institutions.

The environmental law literature has been similarly rich, with relevant work by Bill Buzbee, Kirsten Engel, Brad Karkkainen, and Hari Osofsky, among others. In constitutional law, meanwhile, suggestive work has been penned by Judith Resnik, Mark Rosen, and Robert Schapiro.

Finally, in another area of interest to me, relevant corporate and securities analysis has been done by Renee Jones, Mark Roe, and Bob Thompson, among others. In this sphere, relevant interests of my own have included the Securities and Exchange Commission’s interactions with both sub-national authorities (e.g., then-Attorney General Eliot Spitzer) and international institutions (e.g., the International Accounting Standards Board), the implications of the Sarbanes-Oxley Act for state corporate law, and the SEC’s engagement with state corporate lawmakers under SEC Rule 14a-8.

With an eye to creating an institutional framework for this diverse and growing literature, meanwhile, Bill Buzbee (environmental and administrative law), Robert Schapiro (constitutional and federal courts law), and I (international and corporate/securities law) have recently established a new Center on Federalism and Intersystemic Governance at Emory Law School. Over the coming years, it is our hope that the Center can provide support and encouragement for further development of both positive and normative accounts of the patterns of cross-jurisdictional interaction described above – patterns we have variously explored as intersystemic adjudication, dialectical regulation, mixed governance, polyphonic federalism, and intersystemic governance.

With the changing nature of jurisdiction – driven by the internet, the telecommunications revolution, ease of travel, and patterns of globalization generally – incidents of intersystemic governance, from application of the Shari’a in Britain to transnational regulation of what can be sold on eBay, can only be expected to increase. Scholars writing on these questions, even across widely divergent fields, may do well to more closely engage one another, in hopes of achieving a better understanding of this important phenomenon.

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 [...]]]> 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:

1/08: 45

2/08: 117

3/08: 204

4/08: 122

5/08: 89

6/08: 113

7/08: 130

8/08: 96

9/08: 408

10/08: 172

11/08: 109 (to date)

Over the course of the entire year, some general fluctuation is readily apparent. The collapse from September to November is quite striking, however, especially when we consider the mounting scope of the government’s existing and potential bailout program during just that period. Driving the point home, consider that when I re-did the November search this morning – bringing in a day during which the Citigroup bailout was all over the news – the number of hits increased, by the grand sum of ONE.

Perhaps the explanation for the diminished talk of moral hazard lies in the fact that one can’t quibble over such niceties as moral hazard, at the moment when the sky is falling. Fair enough.

On the other hand, the sky will eventually be put back in place. And bankers, hedge fund managers, corporations, and investors will again need to engage in dispassionate assessments of market risk. Our response today, even as the sky is falling, can undoubtedly be expected to shape those assessments.

Perhaps the deeper implication of the lack of talk of moral hazard, then, is its decline as a useful analytic device. In the Brave New World of the U.S. financial markets (and even beyond, if the auto industry is next up for a rescue), the moral hazard created by public intervention may increasingly be no “hazard” at all. Rather, it may be the presumptive baseline. The timing of bailouts will vary, of course. The scope of the requisite crisis – and the resulting bailout – will be important. But the central question of moral hazard – the possibility of a government rescue – may have ceased to be an interesting question.

In the new marketplace, perhaps, bailout may be the new normal.

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 [...]]]> 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.

Perhaps The Wall Street Journal goes too far, however, in offering (and defending!) the proposition that this shift in usage helps to explain the financial crisis.

On the morning of the third presidential election day I was spending as an academic, I already knew something was afoot, when I found the quad at Columbia busy with activity – at 8 o’clock in the morning. Confirmation came as I crossed the quad to my office, overhearing not one, not two, but three cell phone conversations in which students were asking about, or reporting on, the length of the lines at their voting locations.

That evening, at the home of a Columbia Law colleague, those in attendance kept excusing themselves to the back room, to take congratulatory calls from friends and family overseas. One reported a brief [...]]]> Looking back on what was, by all accounts, a historic week, a few moments stand out:

On the morning of the third presidential election day I was spending as an academic, I already knew something was afoot, when I found the quad at Columbia busy with activity – at 8 o’clock in the morning. Confirmation came as I crossed the quad to my office, overhearing not one, not two, but three cell phone conversations in which students were asking about, or reporting on, the length of the lines at their voting locations.

That evening, at the home of a Columbia Law colleague, those in attendance kept excusing themselves to the back room, to take congratulatory calls from friends and family overseas. One reported a brief voicemail they received from Europe: “Thank you!”

At the very end of the night, as I hailed a cab, I debated whether to try to catch a train back to Princeton, or spend the night in the city, given how late it was. I asked the young driver how long it would take to get to Penn Station, to see whether I would make the next train. “Everyone’s out in the street, so it may take a while. Where are you going?” Princeton, I told him. “I’ll take you!” No, no need to go all that way. “No, it’s Obama night! I want to take you!” I protested, but he insisted. “As long as you don’t mind that I yell “Obama!!!” out the window once in a while, let’s go.”

The next day, finally, I had lunch – as is the custom at the Institute for Advanced Study – with faculty members Joan Scott and Danielle Allen, emeritus professor Michael Walzer, and Sarah Hirschman, the wife of emeritus professor Albert O. Hirschman. Each wore a yellow smiley face sticker, distributed by the cafeteria’s sous chef. Perhaps more notably, one-by-one, each offered a report on their canvassing and phone banking work of the day before, for the Obama campaign.

Quite a historic week.

This Saturday, I’m in Washington, at a conference I helped organize at American University, on Exploring the Intersections of Religion and Governance: Past, Present, and Future.

Over the course of the day yesterday, and continuing today, the discussion has explored historical and comparative perspectives on the relationship of religion and governance, the relevance of religious communities to the pursuit of social and economic development, intersections of religious belief with the regulation of both climate change and corruption, and even the religious dimensions of intellectual property law. Speakers have included Arash Abizadeh, Abduh An-Na’im, Jeremy Gunn, David Hunter, and Layli Miller-Muro. All told – in my admittedly biased assessment – a [...]]]> I write with the latest in my series: “It’s Saturday, so I must be in…”

This Saturday, I’m in Washington, at a conference I helped organize at American University, on Exploring the Intersections of Religion and Governance: Past, Present, and Future.

Over the course of the day yesterday, and continuing today, the discussion has explored historical and comparative perspectives on the relationship of religion and governance, the relevance of religious communities to the pursuit of social and economic development, intersections of religious belief with the regulation of both climate change and corruption, and even the religious dimensions of intellectual property law. Speakers have included Arash Abizadeh, Abduh An-Na’im, Jeremy Gunn, David Hunter, and Layli Miller-Muro. All told – in my admittedly biased assessment – a fasinating conference!

Anyway, for those who may be interested in questions of law and religion, the conference is being webcast, and will also be available in video format for viewing/downloading later this coming week, at http://www.wcl.american.edu/secle/video.cfm.

In Noah’s view, the Court does well to modulate (as it historically has) its receptivity to international law, in accordance with relevant geopolitical context. At the moment, thus, when the United States’ long-time status as the preeminent transnational advocate of the “Rule of Law” is in question, heightened judicial compliance with international law is in order. At other times, it will likely be less so. Hence, the notion of judges “making foreign [...]]]> After carrying it around for a week, I finally had a chance to read Noah Feldman’s fascinating recent piece in The New York Times Magazine – “When Judges Make Foreign Policy”. Provocative as always, Noah offers a unique positive and normative account of the Supreme Court’s engagement with international norms.

In Noah’s view, the Court does well to modulate (as it historically has) its receptivity to international law, in accordance with relevant geopolitical context. At the moment, thus, when the United States’ long-time status as the preeminent transnational advocate of the “Rule of Law” is in question, heightened judicial compliance with international law is in order. At other times, it will likely be less so. Hence, the notion of judges “making foreign policy”.

Fascinating as it is, however, I do not propose to take up this analysis – a kind of “hydraulic” approach to the Court’s engagement with international norms – here. For the moment, rather, I write only a challenge a handful of Noah’s points – three, in particular.

To begin, there is his – admittedly quite common – equivalence of “sovereignist” resistance to international law with the defense of democracy. To quote:

[T]he constitutional principle here [i.e., in the “conservative vision” of resistance to international law] is . . . one that most liberals also fully embrace: namely, the principle of democracy. . . . International law, as even its staunchest defenders must acknowledges, often fails to accord with democratic principle. Such law is not passed by a democratically elected Congress and signed by a democratically elected president.

I am doubtful that this simple account of the sovereigntist claim, however, can get us very far. I do not, to be clear, dispute the validity of sovereignist claims across the board. The assertion of sovereignty may well constitute an effective argument against the domestic application of international law in many respects. But I do not believe that assertion can be equated with democracy.

To begin, it is useful to recall Judith Resnik’s insightful emphasis on the growing embrace of international norms by executive and legislative authorities (i.e., the political branches) at the state and local level – a pattern others (including myself) have also explored. In such circumstances, there can surely be no offense to democracy.

More broadly, however, it is important to recall the operative question on the table: Whether the unelected, life-tenured judges of the Supreme Court should choose to accept or resist the bounds of international law. Whatever is at stake in this calculus, democracy is not.

Of course, by several degrees of separation, the Supreme Court’s decision-making enjoys a democratic pedigree. But if that’s the notion on which the the conception of sovereigntism as democracy turns, it bears recalling (as Noah rightly acknowledges) that the vast majority of international rules, and even institutions, arise from some initial – and often ongoing – exercise of domestic will.

A second passage in Noah’s analysis also caught my eye:

Liberals concede that the framers showed respect for international law, in part, because their country was new and revolutionary, and they sought legitimacy in the community of nations.

What, I wonder, are we to understand as the counterpoint to this concession by liberals? Surely not that nations’ obligation to international law – as distinct from their actual compliance with it – is keyed to their global stature?

Elementary game theory, to begin, would seem to question the coherence of such strategic (ab)use of international law. In a world of repeat plays, defection breeds defection, such that any compliance with international law would be difficult to rationalize along such lines.

More importantly, though, would even a crassly realist account embrace the argument that our actual duties under international law modulate with our power? Compliance with international law may or may not be consistent with our national interests. But surely an entirely instrumental paradigm of compliance cannot be.

One need not embrace Charles Fried’s conception of “trust” as an essential social institution to appreciate as much. I suspect, however, that no realist – or “conservative,” to use Noah’s terminology – could justify the direct assault such an conception makes against the stability of international commitments.

Whatever costs selective U.S. compliance with international law might have on our foreign relations, surely the notion that it is simply not applicable to us anymore, given our increased power, is not plausible.

Finally, a smaller – but still important – point: Speaking of the Supreme Court’s recent decision in Medellin v. Texas, Noah states that “[t]he Supreme Court held that the treaties obligating us to listen to the International Court of Justice were not binding law.”

In fact, the Court was unanimous in adopting just the opposite conclusion, stating that “the ICJ’s judgment in Avena creates an international law obligation on the part of the United States.” The critical question in Medellin, as such, was emphatically not whether the United States was bound by international law. Rather, it was simply how that obligation could and could not be implemented domestically.

This may not make the decision any more praiseworthy an incident of judicial “foreign policy.” In fact, it may be even worse. But it surely differs from an outright rejection of our obligation under international law.

In the manuscript, Ryan and Derek draw on their prior work to offer an account of “acculturation” as a distinct mechanism by which norms are disseminated transnationally. Alongside more familiar patterns of coercion and persuasion, they [...]]]> This past Saturday, I had the pleasure of spending the day at Temple Law School [not Tulane, Dave...], for what proved to be a fascinating workshop. Together with Jaya and other famous figures of the legal blogosphere – Duncan Hollis, Peggy McGuinness, Deb Pearlstein, Kim Scheppele, Peter Spiro, and David Zaring – as well as a stellar group of other legal academics and social scientists, we gathered to discuss a fascinating book manuscript by Ryan Goodman & Derek Jinks, entitled Socializing States: Promoting Human Rights Through International Law.

In the manuscript, Ryan and Derek draw on their prior work to offer an account of “acculturation” as a distinct mechanism by which norms are disseminated transnationally. Alongside more familiar patterns of coercion and persuasion, they suggest a tendency of states to align their behavior with common norms and practices, even where the latter are neither forced upon them by their material interests, nor accepted/internalized on the merits.

Obviously, a fascinating argument, which made for a rich discussion. As much as anything else, though, I write to highlight the format, which I thought made for a productive day. Each participant submitted written comments on the manuscript in advance, such that Ryan and Derek could comment on them as they chose, and we participants could effectively build on the comments offered by others.

This made for what I thought was a much closer analysis and critique than might otherwise have been accomplished. Further to that end, we also adopted the practice commonly credited to Mark Tushnet’s “conlaw schmooze,” in which each commenter chooses whom to call on for the next comment, rather than having a moderator maintain a queue, with its sometimes choppy quality.

In any case, I thought the program covered a lot of territory, in ways that might be well worth replicating, in other gatherings intended to explore on a particular manuscript or work-in-progress. I’ve already proposed that Emory think about developing some similar series of events.

As described by the Times, the SEC’s April 28, 2004 decision – taken at the strong insistence of Hank Paulson (then of Goldman Sachs) and the heads of the other major investment banks – has a real cloak and dagger quality to it: A brief hearing. Few attendees. Nervous laughter. And – I’m not kidding – it all happens in the basement.

More interesting for me, though, was the [...]]]> Last Friday, the New York Times reported on the SEC’s 2004 change in the net capital rule – to exempt the brokerage units of the nation’s largest investment banks from existing limitations on their outstanding debt. This decision, in turn, was keyed to the SEC’s (recently suspended) “voluntary supervision” program for those banks.

As described by the Times, the SEC’s April 28, 2004 decision – taken at the strong insistence of Hank Paulson (then of Goldman Sachs) and the heads of the other major investment banks – has a real cloak and dagger quality to it: A brief hearing. Few attendees. Nervous laughter. And – I’m not kidding – it all happens in the basement.

More interesting for me, though, was the article’s reference to the sole dissenting comment submitted to the SEC, by Leonard D. Bole – “a software consultant and expert on risk management.” Writing from Indiana, Mr. Bole questioned the wisdom of relying on the banks’ own risk simultation models, which had previously proven inadequate to prevent the collapse of Long-Term Capital Management and Black Monday, in October 1987.

But he was ignored.

This got me thinking about the individual (vs. organizational) comments I’ve seen submitted in notice and comment rulemaking processes over the years – comments I commonly wrote off as the work of crackpots with too much time on their hands.

For the most part, I suspect, my assessment was fairly accurate. After all, who keeps up with proposed rulemaking notices in the Federal Register? If there’s occasional a Bole in the bunch, though, perhaps the comments might deserve more sustained attention. At a minimum, we might consider some procedural mechanism – premised on a precautionary principle of sorts – by which objections to proposed rule changes, whatever their source, must be considered and perhaps even explicitly addressed.

Sure, hindsight is 20/20, but if foresight occasionally comes even close, it might be well worth our investment in it.

Cory, of course, is now the mayor of Newark and, by all accounts, a rising political star. What struck me most in watching and listening to him, though, even after a ten year hiatus, was how much he was the same guy who lived a few doors away from Deven and me in our 1L year, at Mansfield Apartments in New Haven. [...]]]> On Friday night, I had the pleasure to hear Cory Booker – friend and law school classmate (of a number of the illustrious permabloggers gathered here) – speak on the theme above: “Humble Hopes and Insane Idealism”. It was the third of a trilogy of lectures in the Toni Morrison Lectures series, which Cory was selected to give at Princeton this year.

Cory, of course, is now the mayor of Newark and, by all accounts, a rising political star. What struck me most in watching and listening to him, though, even after a ten year hiatus, was how much he was the same guy who lived a few doors away from Deven and me in our 1L year, at Mansfield Apartments in New Haven. And a good and genuine guy, at that.

His remarks were impressive, even by the standard of Princeton lectures and popular politicians. Even as he spoke to the state of our politics and the ongoing economic crisis, he weaved in talk of Don Quixote and Pericles, the evolution of urban architecture, and the critical need for love – and not of the romantic variety – in the continued “journey of America’s spirit”.

Like many (perhaps particularly among practitioners of law), I have come to view politics, its practitioners, and our political life as a whole, with a fairly jaded eye. Talk of “hope”, “insane idealism”, and a “journey” of the spirit – let alone of “love”, simply gets filtered out, as empty words, to be written off as the pretty words of someone who wants to keep his job.

Listening to Cory, though, something was different: It was clear that he really meant it. He really believed that “love” mattered to our political life.

And as I watched the crowd – an educated, successful bunch likely to be as cynical as the next guy – it was clear that they wanted to believe it too. And, abused though I may be for it, as I listened, I began to believe it as well. Perhaps, I wondered, we might do well to give hope, idealism, and perhaps even love a chance.

Perhaps it might do our political life some good.

At least as significant as the mothballing of this particular initiative might be the issuance of such a statement by Cox, among the leading architects – and boosters – of deregulation during his fifteen years in Congress.

Surely it remains early for post-mortems on the de-regulatory [...]]]> Perhaps chastened by Senator McCain’s earlier call for him to be fired [sic: to submit his resignation], SEC Chair Christopher Cox seems to have decided last week that some preemptive strike was in order. On Friday, with little fanfare, Cox announced the end of the SEC’s four-year experiment with “voluntary supervision” of Wall Street’s (former) investment banks. In doing so, Cox bluntly confessed that “[t]he last six months have made it abundantly clear that voluntary regulation does not work.”

At least as significant as the mothballing of this particular initiative might be the issuance of such a statement by Cox, among the leading architects – and boosters – of deregulation during his fifteen years in Congress.

Surely it remains early for post-mortems on the de-regulatory state that has arguably been the dominant regulatory project of the last three decades. But is it possible that between the striking explosion in the size of the federal government over the last eight years, and the chaos that deregulation has recently wrought on Wall Street, we’re reaching the end of the end of “the era of big government“?

By contrast, little criticism seems to have been directed at former Congressman Jim Leach (R-Iowa), long-time chair of the Banking Committee, and lead sponsor of the legislation in the House.

At first glance, one might credit this discrepancy to Gramm’s prominent role in Senator McCain’s presidential campaign. But Leach has arguably been no less important a figure in the present election cycle, as [...]]]> Amidst the financial crisis, former Senator Phil Gramm has received a good drubbing in the press for his top billing on the legislation often claimed – perhaps inaccurately – to have laid the groundwork for Wall Street’s recent collapse: the Gramm-Leach-Bliley Act. The latter, of course, famously repealed the Depression-era Glass-Steagall Act and its wall of separation between investment and commercial banking.

By contrast, little criticism seems to have been directed at former Congressman Jim Leach (R-Iowa), long-time chair of the Banking Committee, and lead sponsor of the legislation in the House.

At first glance, one might credit this discrepancy to Gramm’s prominent role in Senator McCain’s presidential campaign. But Leach has arguably been no less important a figure in the present election cycle, as one of the two most prominent Republicans (along with former Senator Lincoln Chafee) to formally endorse Senator Obama’s candidacy – as well as a primetime speaker at the Democratic National Convention.

Various other factors might help to explain the relative focus on Gramm versus Leach: Gramm is a sharply polarizing political figure, while Leach is almost academic in his public demeanor. Gramm has been a far more visible surrogate for his candidate than Leach for his. And, of course, Gramm called us “a nation of whiners,” while Leach has managed to avoid such gaffes.

Most important, though, may be the relevant context: Gramm was a central player in the broad advance of deregulatory initiatives in the 1980s and 1990s. A former academic, he played an influential role in advancing that agenda, as an evangelist, as much as anything else. In a sense, then, critiques of Gramm-Leach-Bliley might properly – and far more significantly – be understood as wholesale critiques of the program of deregulation, a program far more closely associated with Senator Gramm than Congressman Leach.

And, in case you were wondering, Bliley really has disappeared…

Of course, some of it is already ancient history, with a very busy week having passed since.

Some return for an encore, to report on some relevant research project they have underway.

Yet others return, to address some current event falling within their particular area of expertise.

And then there’s me.

In sharp contrast to my predecessors, I’ve been called back to apologize.

That’s right. On the advice of its over-staffed Office of General Counsel, Concurring Opinions LLC has asked me to return, to apologize for this.

Dave’s recent post was kind enough not to dwell on my brief report of the now-renounced Temple Law Review [Update: Make that the TULANE Law Review] article referenced therein, which attempted to link the voting records of Louisiana Supreme Court justices with campaign contributions from relevant litigants and their lawyers. [...]]]> Some CoOp guest bloggers are invited back as permabloggers.

Some return for an encore, to report on some relevant research project they have underway.

Yet others return, to address some current event falling within their particular area of expertise.

And then there’s me.

In sharp contrast to my predecessors, I’ve been called back to apologize.

That’s right. On the advice of its over-staffed Office of General Counsel, Concurring Opinions LLC has asked me to return, to apologize for this.

Dave’s recent post was kind enough not to dwell on my brief report of the now-renounced Temple Law Review [Update: Make that the TULANE Law Review] article referenced therein, which attempted to link the voting records of Louisiana Supreme Court justices with campaign contributions from relevant litigants and their lawyers. Yet there it remained in the CoOp archives – unrepudiated.

Until now.

Without equivocation, then, let me say: I renounce that post. I regret that post. And I apologize for that post.

The authors of the article were wrong. The post was wrong. And I was wrong.

There. Lawsuit averted.

Any lessons to be learned from the experience? Four come to mind, fairly quickly:

(1) First, I’ll never trust Adam Liptak again.

(2) Second, be wary of “vaporware” in scholarship, as elsewhere. When the results of a paper are announced, but not disclosed, something may well be awry. Sure, if you say nothing, someone may beat you to the scoop. But better that than the ugly denouement offered above the fold.

(3) Take care in judging a book by its author. One of the co-authors of the relevant paper was Vernon Palmer, a capable scholar of comparative law. I admire much of his work in the field. But his strengths in the one field of scholarly inquiry may tell us precious little about the strengths of his analysis in another.

(4) Finally, bringing the latter lesson home, painful though it may be to admit, most of us are not Renaissance men (or women). Given as much, we might perhaps take due caution, in evaluating claims outside our areas of expertise – perhaps especially when they happen to resonate with our natural assumptions or inclinations.

Apology issued, and lessons appropriately learned, I look forward to being back with you, commenting thoughtfully on bankruptcy law, law and literature, Dadaism, nuclear energy, and whatever other random things I happen to hear about, over the ensuing weeks…

In essence, the article challenges the conventional rhetoric of the corporate literature, which cites federalism as “the genius of American corporate law” – an engine of efficiency, motivating a race (or at least a leisurely walk) to the top. Others have dissented from this prevailing wisdom, of course, variously suggesting it is wrong as to either the vitality or the direction of the promised race (i.e., whether there is a race, and where it’s leading us). Upon closer reflection, however, such critiques are [...]]]> In case it might be of interest, I wanted to share the abstract of a new article I’ve just finished, and submitted to the mysterious black box that is the law review selection process. The full paper is posted here.

In essence, the article challenges the conventional rhetoric of the corporate literature, which cites federalism as “the genius of American corporate law” – an engine of efficiency, motivating a race (or at least a leisurely walk) to the top. Others have dissented from this prevailing wisdom, of course, variously suggesting it is wrong as to either the vitality or the direction of the promised race (i.e., whether there is a race, and where it’s leading us). Upon closer reflection, however, such critiques are too forgiving. At least on its face, the conventional account misunderstands the basic question; its answer, as such, is not even wrong.

My critique, then, does not simply weigh in on the never-ending debate over a race to the top versus the bottom in corporate law. Instead, I highlight a fundamental flaw in the discourse behind the debate. Most critically, I decry the literature’s all but universal linkage of corporate law’s central goal – efficient regulation of the separation of ownership and control – with the central element of its institutional design – federalism and resulting state charter competition. In place of such linkage, I suggest an alternative account of the role of federalism in American corporate governance. This account identifies a distinctive purpose for federalism in corporate governance, highlights particular metrics of its efficiency, and encourages a reinvigorated study of institutional design in corporate law.

The full abstract is beneath the fold.

The abstract:

In the standard rhetoric of the corporate law literature, federalism is “the genius of American corporate law” – an engine of efficiency, motivating a race (or at least a leisurely walk) to the top. Some have dissented, suggesting that the prevailing wisdom is wrong as to either the direction or the vitality of the promised race. But the latter critiques are too forgiving. The standard account misunderstands the basic question; its answer, as such, is not even wrong. Rather than weighing in on the “race debate,” thus, I challenge the fundamentally flawed discourse behind it. I offer a distinct framework for evaluating the role of federalism in American corporate governance, which points to distinct measures of efficiency and a reinvigorated study of institutional design in corporate law.

To begin, I challenge the literature’s merger of two distinct competitions – state and managerial – into one. More critically, I decry the resulting linkage between corporate law’s central goal – efficient regulation of the separation of ownership and control – and the central element of its institutional design – federalism. That rhetorical linkage has led us astray in important respects: First, it has bootstrapped a role for federalism in advancing not merely the quality of corporate law, but also the substantive quality of corporate governance. Second, it has essentialized the role of federalism, casting it as indispensable to the production of good law. Dominant as these conceptions are in the discourse of corporate law, neither is true.

I suggest an alternative account of federalism’s contribution to American corporate governance. Federalism is not directed to the traditional goal of corporate law – regulation of the vertical separation of ownership and control within the firm. Rather, it advances a distinct, horizontal goal of regulating the relationship of the firm as a whole with state regulators external to it. Given as much, a federal regime is not dictated by a commitment to efficiency in corporate law. Rather, it is an institutional design choice, to be evaluated for its efficacy and utility – as well as its limitations – in one area of corporate law versus another.

I’d welcome your thoughts!

To wit: I’ve always thought of the radio as transformative, in creating a means for the instantaneous dissemination of identical information to a mass audience. The boob tube, by contrast, seems like mere icing on the cake.

More recently, and perhaps more counter-intuitively, I’ve been inclined to describe the answering machine as transformative – by contrast with the mobile phone. The answering machine, my logic goes, created a mechanism by which we could connect [...]]]> Since some point in high school, I’ve had a bit of an obsession with the idea of “transformative technologies.” Basically, I’ve found it interesting to think about what technologies truly transform our lives, rather than simply offering added value – however significant we might perceive that value to be.

To wit: I’ve always thought of the radio as transformative, in creating a means for the instantaneous dissemination of identical information to a mass audience. The boob tube, by contrast, seems like mere icing on the cake.

More recently, and perhaps more counter-intuitively, I’ve been inclined to describe the answering machine as transformative – by contrast with the mobile phone. The answering machine, my logic goes, created a mechanism by which we could connect with someone in short order, without the need to actually locate them. (Of course, the telegraph might be understood to have done the same thing, but the relative challenges of communicating by telegraph might arguably place it a notch behind the answering machine, at least in the specific dimension on which I’m analyzing the latter. More importantly, I would suggest, the primary transformation wrought by the telegraph – which I would acknowledge – lies not in the capacity to communicate with someone without locating them, but in the capacity to communicate with someone at all. In this respect, it should be evaluated against the telephone, in terms of its transformative impact.)

The mobile phone, it is true, makes it easy for us to communicate, regardless of where we are. But (formerly) omnipresent pay phones did something similar – at least in tandem with answering machines, and later voicemail. The ease of actually talking wherever we are, moreover, is less self-evidently transformative to me, than the ease of receiving the content of such communications, regardless of where we are.

A story on National Public Radio last week, however, made me wonder. In it, the reporter described the increasing participation of fairly small-scale African farmers in global markets. A number of relevant variables came into the picture, but among the most significant was the widespread availability – and use – of mobile phones by such farmers. The latter, the report indicated, have “created a great sense for the farmers of reality, of what urban markets are like.”

Now that’s something different. That a small-scale farmer in Africa, with little other exposure to the global economy, might gain insight into it via his mobile phone struck me as truly transformative.

And for those obsessed with the imminent invasion of illegal immigrants in black helicopters, there’s a place for you as well!

Off-line, Bill Buzbee, my Emory colleague and a scholar of administrative and environmental law, questioned whether I was understating the attention to efficacy in the administrative law literature, prompting me to try out a bit of (extremely) casual empiricism. For the very limited insight it offers, my results:

My search for (“administrative law” /5 limit!) in Westlaw’s Journals and Law Reviews (JLR) database, to begin, yielded 437 hits.

My search for (“administrative law” /5 (efficac! effective!)) in JLR, by contrast, yielded 129.

Look out, Hoffman, I’m a number cruncher [...]]]> In an earlier post, I raised the question of whether we might do well to focus greater attention on the role of constitutional and administrative law in promoting the efficacy of regulation, rather than simply its limitation and constraint.

Off-line, Bill Buzbee, my Emory colleague and a scholar of administrative and environmental law, questioned whether I was understating the attention to efficacy in the administrative law literature, prompting me to try out a bit of (extremely) casual empiricism. For the very limited insight it offers, my results:

My search for (“administrative law” /5 limit!) in Westlaw’s Journals and Law Reviews (JLR) database, to begin, yielded 437 hits.

My search for (“administrative law” /5 (efficac! effective!)) in JLR, by contrast, yielded 129.

Look out, Hoffman, I’m a number cruncher now!