Author Archive for robert-ahdieh
The Roundtable
posted by Robert Ahdieh
I haven’t listened to all of it, but the Yale School of Management’s recent roundtable on the bailout has a good collection of folks, including Bill Donaldson, Nancy Peretsman, Steve Schwarzman, and Robert Shiller.
Of course, some of it is already ancient history, with a very busy week having passed since.
September 30, 2008 at 9:58 pm
Posted in: Current Events
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The Way Back…
posted by Robert Ahdieh
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:
September 24, 2008 at 3:05 pm
Posted in: Empirical Analysis of Law
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The (Misunderstood) Genius of American Corporate Law
posted by Robert Ahdieh
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.
March 14, 2008 at 4:34 pm
Posted in: Corporate Law
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Transformative Technologies
posted by Robert Ahdieh
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.
February 22, 2008 at 6:13 pm
Posted in: Technology
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A Place for Paranoia
posted by Robert Ahdieh
Looking for a way to rationalize your suspicions about the odd-looking guy you always see at the airport? Anxious to justify your worries about the stains on that backpack sitting in the hallway? Look no further. Paranoia has a new home page.
And for those obsessed with the imminent invasion of illegal immigrants in black helicopters, there’s a place for you as well!
February 22, 2008 at 8:36 am
Posted in: Weird
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Efficacy and Administrative Law, Part II
posted by Robert Ahdieh
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!
February 21, 2008 at 7:29 am
Posted in: Administrative Law, Constitutional Law, Empirical Analysis of Law
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Passings
posted by Robert Ahdieh
Early last week, I attended a memorial service for my colleague, Harold Berman. As others have noted, including here and here, Professor Berman was a preeminent scholar of legal history, comparative law, Soviet and Russian law, jurisprudence, and law and religion. As Guido Calabresi had occasion to say of him: “Berman’s work, and especially his Law and Revolution, will endure when almost everything is forgotten. He is the only American who might be paired with Max Weber in the depth of his historical and comparative understanding of the remarkable character of legal modernity – as well as in his appreciation of the inherent fragility and distinctive value of Western legalism.”
A member of the Harvard Law School faculty from 1948 to 1985, Professor Berman came to Emory in the face of mandatory retirement, and his desire to continue to teach and write. We were truly lucky to have him. Until near the very end (at the age of 89), he traveled widely, was in the office six days a week, taught a full load of courses, and was an active participant in the life of the community. He was also an incredibly engaged and supportive colleague, including particularly with regard to his most junior colleagues. “This is your law school now,” he once said, speaking of the junior faculty. “If you don’t agree with a decision, we shouldn’t even consider it!”
At the very moving memorial for Professor Berman last week, two things particularly struck me. The first was a colleague’s reference to him as living on in his memory, as “a metaphor” for the values of intellectual curiosity, analytical rigor, and open mind that he hoped he himself would always exhibit as a scholar. We all, I thought, might do well do have such a metaphor in our lives – perhaps both professional and personal – against which to take measure of our choices and commitments, as well as our successes and failures.
Reflecting on the warm recollections and tributes of Professor Berman’s family, colleagues, and friends, I somehow also kept recalling the simple notion of “A life well lived.” We should all, I thought, hope to die to such warmth, affection, and appreciation from our families and our co-workers alike. Many might manage one or the other. But to secure such praise from both struck me as quite an achievement.
February 21, 2008 at 6:26 am
Posted in: Current Events
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Missouri v. Holland, in Missouri
posted by Robert Ahdieh
I spent the end of last week at the University if Missouri-Columbia, attending a great conference organized by Peggy McGuinness, on the (in)famous case of Missouri v. Holland. There, of course, Justice Holmes wrote for the Supreme Court, holding that Congress could enact legislation otherwise beyond its constitutional authority, in furtherance of a duly-enacted treaty obligation.
With a great line-up of panelists and a fascinating set of underlying issues to explore, we had what I thought was a fantastic day-and-a-half of discussion. In particular, and perhaps appropriately, we spent a substantial amount of time assessing the continuing significance of the decision, given the dramatic expansion of Commerce Clause authority since it was handed down in 1920. There is, of course, the “loaded-gun” notion that the very availability of the expansive authority invited by the decision constitutes a substantial threat. Likewise, one might question whether the Court’s decisions in Lopez and Morrison augur a potential revival of Missouri v. Holland as constitutional doctrine.
From my perspective, though, the most fascinating element of our discussions concerned the ways in which Missouri v. Holland might be significant, regardless of its jurisprudential force. I was struck, for example, by one participant’s recollection of an occasion on which U.S. treaty negotiators’ attempts to assert constitutionally grounded federalism constraints as a basis to resist a proposal by their foreign interlocutors were parried with invocations of Missouri v. Holland.
More broadly, I was interested to think about what continuing significance the decision has, for how we conceptualize the relationship of international, national, and state law. In the scheme of jurisdictional interaction exemplified by Missouri v. Holland, international law functions as a kind of trump card – an Ace available to the federal government to coerce state authorities. If Missouri no longer captures the political economy of U.S. federal-state relations, however, as I argue in my submission to the symposium, we might do well to reconsider that traditional conception of international law as a threat to state authority, and federalism more broadly.
February 21, 2008 at 5:52 am
Posted in: Conferences, Constitutional Law, International & Comparative Law, Supreme Court
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Et tu, Huckabee?
posted by Robert Ahdieh
Preliminary responses to Mitt Romney’s withdrawal from the race for the Republican nomination seem to concur on a view of the news as a big plus for John McCain, the presumptive nominee of the party. I wonder whether that’s right, though.
At one level, I understand the logic. McCain was already fairly likely to win the nomination. With his major competitor out of the picture (along with his deep pockets), the odds of a McCain victory would seem that much higher. (I haven’t checked, but presumably the prediction markets reflect as much.)
With Romney’s departure, however, Mike Huckabee will no longer be splitting the votes of the conservative, rather virulently anti-McCain bloc of the party. Instead, he gets all of that vote. (Query, of course, whether that’s right. It might not be, if those voters are oriented more to electability than to their distaste for McCain. On the other hand, if they see McCain as a done deal anyway, why not actually vote your preferences?)
Some might shrug their shoulders: “So what if Huckabee gets all those votes?” Remember, though, that Huckabee has already won six states, even with another conservative in the race. Head-to-head against McCain and his fairly high negatives among a significant portion of Republican primary participants, who knows how he might do.
Am I suggesting that Huckabee could win the nomination? Not really. That still seems fairly unlikely, even given the winner-take-all nature of many of the Republican primaries. Rather, the question is whether McCain will need to continue to tack fairly hard to the right, in the face of an articulate, witty, populist, Southern governor. If he does, it can’t possibly help, when it comes time to face Hillary Clinton or Barack Obama.
At that point, he might well come to wish that Romney had stuck it out.
February 7, 2008 at 2:33 pm
Posted in: Current Events
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Measuring Justice(s) in Louisiana
posted by Robert Ahdieh
An article in today’s New York Times, by Adam Liptak, reports on a forthcoming article in the Tulane Law Review, co-authored by Vernon Palmer (Tulane Law) and John Levendis (Loyola-New Orleans economics). As Liptak reports it, Palmer – a comparative law scholar – had long been struck by the ability of Louisiana Supreme Court justices to hear cases involving individuals who had previously made campaign contributions to them.
Quite reasonably, Palmer wrote a letter to each of the justices, recommending adoption of a rule mandating disqualification in such cases. Receiving no reply, he wrote again. Once more, no response was forthcoming. Some might have given up on the quixotic endeavor at this point. Being at academic, however, Palmer instead decided to recruit Levendis to help him do an empirical study of campaign contributions to the Court’s justices and relevant case outcomes.
Their basic calculations indicated the justices to have voted in favor of their contributors, on average, 65% of the time. (In the case of some justices, the level rose to 80%.) But the really interesting findings came when they used voting patterns in cases without contributors as their control. Liptak is worth quoting:
Justice John L. Weimer, for instance, was slightly pro-defendant in cases where neither side had given him contributions, voting for plaintiffs 47 percent of the time. But in cases where he received money from the defense side (or more money from the defense when both sides gave money), he voted for the plaintiffs only 25 percent of the time. In cases where the money from the plaintiffs’ side dominated, on the other hand, he voted for the plaintiffs 90 percent of the time. That is quite a swing. . . .
Larger contributions had larger effects, the study found. Justice Catherine D. Kimball was 30 percent more likely to vote for a defendant with each additional $1,000 donation. The effect was even more pronounced for Justice Weimer, who was 300 percent more likely to do so.
Not having seen the article itself, it’s hard to evaluate the quality of the authors’ empirics. If they’re even a little right, though, it seems like quite a finding. And perhaps quite telling, about justice and the elected justice.
January 29, 2008 at 9:12 pm
Posted in: Constitutional Law, Empirical Analysis of Law, Law Practice, Legal Ethics, Politics
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SWF’s
posted by Robert Ahdieh
No, no. As much as my subject might look like titillating Instant Messaging (IM) short-hand used by the High School Musical set, it’s actually Sovereign Wealth Funds (SWF’s) that I have in mind.
In yesterday’s Wall Street Journal (requires subscription), Alan Murray reported from the World Economic Forum, on Sovereign Wealth Funds as the “it girl” at Davos this year. (Thereby displacing private equity from that role and, in the words of a private equity fund manager in attendance, “return[ing] [them] to the obscurity that [they] so richly deserve.”) As Abdul-Aziz Abdullah Al Ghurair, chief executive of one of Dubai’s SWF’s, dryly noted: “I’m surprised they are paying so much attention to us.” Paris Hilton, eat your heart out; Abdul-Aziz has arrived at the party.
Much has been made of Sovereign Wealth Funds’ substantial investments in major U.S. companies, including in numerous banks struggling amidst the subprime mortgage crisis. No less an analyst (and internationalist) than former U.S. Treasury Secretary and President of Harvard University Larry Summers is among those sounding alarms.
Two things particularly struck me about Murray’s report from Davos, though. The first was the fact that the second largest SWF, following the very prominent fund controlled by the government of Abu Dhabi, is the Government Pension Fund of Norway. Somehow, I couldn’t help but wonder whether the heat surrounding the rise of SWF’s would be quite as great, if the story line wasn’t about Arabs and the Chinese buying stakes in brand-name U.S. companies and banks, but Norway doing so.
The second was Murray’s point about the relative place of the United States in the global economy. Murray reports data from the McKinsey Global Institute, finding that $56.1 trillion (or one-third) of the world’s financial assets were held in the U.S. in 2006, but that emerging markets had experienced explosive growth, such that they had come to hold $23.6 trillion (by 2006). Looking at McKinsey’s own summary of the report, one finds more of the same. European financial markets had risen to a level just shy of the United States, at $53.2 trillion, but also have a higher growth rate. In part on account of the latter, the euro is “emerging as a rival to the dollar as the world’s global reserve currency.” The growth rate for the emerging markets, as suggested, also beat the U.S. rate.
Perhaps we really are reaching – eight years into the new century – the end of “The American Century.” Many have suggested a loss of U.S. global prestige and diplomatic influence in recent years. But perhaps the years ahead promise a similar decline in economic influence. Where once U.S. public and private entities bailed out distressed governments overseas, the last year has seen the rescue of struggling U.S. banks and other companies by government instrumentalities of Abu Dhabi, Dubai, and other sovereign states.
As Murray points out in his piece, this redistribution of wealth (and influence) is clearly good news for many in the world. And it is at least not obvious that it is overly harmful to Americans themselves. As far a rhetoric and self-perception go, however, we may be in for an interesting ride.
January 29, 2008 at 7:38 am
Posted in: Corporate Law, Current Events, International & Comparative Law, Securities
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Short courses?
posted by Robert Ahdieh
Greetings from (mostly sunny) Champaign-Urbana, where I’m spending the week, teaching a short course on Federalism and the Making of American Corporate Law at the University of Illinois. Under the law school’s short-course program, the brainchild of Ralph Brubaker, my former colleague at Emory and now Associate Dean here at Illinois, anywhere from five to ten professors, judges, and attorneys come to campus each term, to teach a week-long, one-credit course.
I’m told the students generally love the short courses. My own data – consisting of the (fairly high, I think) enrollment of 27 students in the class, and good participation in the first class (yesterday) – would seem to confirm as much. For the visitors, meanwhile, it can be an occasion to try something new, or at least different, and to spend time with academic colleagues they might otherwise only see in passing, in the hallways at AALS. For Illinois, finally, it’s an opportunity to spread good impressions and good will among legal academics, on the bench, and with the bar. (As Charles Tabb – who’s serving as Interim Dean – put it, it’s a great way “to make new friends.”)
At Emory, we have “accelerated courses,” but of a different sort. Visitors, most commonly hailing from overseas, come for four to seven weeks to teach a class or two. Again, students like it, etc. Obviously, though, the longer format engages a completely different set of potential visitors.
Do other schools do anything similar to Illinois? If not, it’s something I suspect might be well-worth considering.
January 29, 2008 at 7:00 am
Posted in: Corporate Law, Education, Law School, Law School (Teaching), Teaching
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Constraint vs. Efficacy in the Study of State Action
posted by Robert Ahdieh
In their broadest strokes, my scholarly interests revolve around questions of regulatory design – inquiries into the institutional forms that law and regulation variously take, and should take. Dynamics of coordination have been particularly salient for me, underpinning a potential role for non-coercive mechanisms of state action I term “regulatory cues,” as well as cross-jurisdictional regulatory interactions I term “intersystemic governance.”
In exploring these patterns, my work has often intersected with issues traditionally studied in the fields of constitutional and administrative law. Questions of U.S. federalism, the nature of federal jurisdiction, and judicial review have variously reared their heads; the nature of the modern administrative state, meanwhile, is front and center.
My various analyses of regulatory cues, intersystemic governance, and the like have also seemed to diverge from the constitutional and administrative law literatures, however, in a way that has always struck me as significant, but was only recently driven home, in relevant comments and work of others.
My earliest sense of the relevant divergence came some years back, when I was working on my very first article, and read the opening paragraphs of Jody Freeman‘s The Private Role in Public Governance, 75 N.Y.U. L. Rev. 543, 545-46 (2000). She states (with citations omitted):
Administrative law, a field motivated by the need to legitimize the exercise of governmental authority, must now reckon with private power, or risk irrelevance as a discipline. Since the New Deal explosion of government agencies, administrative law has been defined by the crisis of legitimacy and the problem of agency discretion. Agencies can claim, after all, only a dubious constitutional lineage–the Framers made no explicit provision for them, but instead divided power among the legislative and judicial branches and a unitary executive. The combination of executive, legislative, and adjudicative functions in administrative agencies appears to violate the separation of powers principles embodied in the Constitution. Worse yet, despite their considerable discretionary power to impact individual liberty and property rights, allocate benefits and burdens, and shape virtually every sector of the economy, agencies are not directly accountable to the electorate.
Unsurprisingly, administrative law scholarship has organized itself largely around the need to defend the administrative state against accusations of illegitimacy, principally by emphasizing mechanisms that render agencies indirectly accountable to the electorate, such as legislative and executive oversight and judicial review. Scholars have expended considerable energy in particular on structuring and disciplining the exercise of discretion in order to limit agencies’ freedom “to do as they please.” Only a handful of articles in the last sixty years, by contrast, have ventured beyond the traditional preoccupation with agencies and the project of constraint.
Freeman goes on to grapple with the question of the private role in public governance, the insight for which she is perhaps most famous. Beyond this discrete (if quite significant) point, though, I read the latter paragraphs to suggest an even deeper truth. As we have defined the discipline of administrative law (and constitutional law, I would venture to add), its underlying project – its basic motivation – is the constraint of government power (and perhaps executive power, most of all). It is, as Freeman’s opening paragraphs emphasize, an analysis in the negative, of how we limit the scope of state action.
January 21, 2008 at 9:28 am
Posted in: Administrative Law, Constitutional Law, Law School (Teaching), Legal Theory, Politics
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The Future of Federal Courts
posted by Robert Ahdieh
In an earlier post, I offered some modest praise of the AALS annual meeting, as a potential venue for legal scholars to explore topics of interest beyond their core research areas. In between my efforts to actualize that theory at the recent annual meeting, though, I also attended several sessions of quite direct interest.
Among the latter, one of my favorites was a panel organized by the Section on Federal Courts, on The Federal Courts and the International System. Besides Ernie Young, who served as moderator, the panel included A.J. Bellia, Curt Bradley, Henry Monaghan, and Trevor Morrison, as well as Sarah Cleveland, who was invited to speak for the “international law” crowd. (As Sarah pointed out, Curt is also an international law scholar, if not the designated internationalist that day.)
Much of the discussion focused on the many intersections of international law and federal jurisdiction in recent years, including the succession of enemy combatant/military commission cases, the Supreme Court’s OT 2005 decision in Sanchez-Llamas v. Oregon, and its impending decision in the fascinating case of Medellin v. Texas – a complex intertwining of international and federal courts law that only a law professor could dream up, and even then, only as an exam question. Naturally, the nature of customary international law as federal or state law was discussed as well, if only for a bit.
At Ernie’s prompting, though, the panelists also took up – in sometimes heated discussion – the necessary and appropriate content of the standard Federal Courts course, given the self-evident “internationalization” of the federal courts. To what extent, the panel explored, do international law, international courts, and international questions belong in the Federal Courts canon? Naturally, the Hart and Wechsler casebook – arguably the keeper of that canon – was a focal point for much of this discussion.
January 16, 2008 at 6:43 am
Posted in: Articles and Books, Conferences, Constitutional Law, International & Comparative Law, Law School (Teaching), Supreme Court
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Lessig on PowerPoint
posted by Robert Ahdieh
Following up on Deven’s recent, well-deserved praise of Larry Lessig‘s Free Culture, I wanted to mention the rather distinct grounds on which I’ve often had occasion to praise Lessig: His use of PowerPoint.
I’ve long had doubts about the the value of PowerPoint as a pedagogic tool. Essentially, I’m unsure what it adds. Often, I hear folks talk about visual learners, but does PowerPoint – at least as commonly used – do much for such learners? Too often, I see speakers use PowerPoint simply to squeeze in more information, with less structure, thought, and analysis, than they might otherwise bring to their remarks. Listeners, I have consequently come to suspect, may actually be learning less with PowerPoint. Perhaps I’m not yet ready to conclude that the crash of the space shuttle Columbia can be traced to PowerPoint, as some have suggested. Given its capacity to bury and obscure relevant information, though, I’m not far off.
Some time ago, however, a friend forwarded me this link, to a talk and PowerPoint presentation by Lessig, back in 2002. (Even if you’ve seen it, I’d encourage you to sample it again, as a truly amazing piece of work.) Basically, by the spare use of select words and phrases, Lessig successfully conveys both his broad themes and a substantial amount of information, in a way that even visual images – let alone line after line of PowerPoint text – could never have done. I’m confident that my absorption of the relevant ideas and material was exponentially greater than my normal (perhaps abnormally low) rate.
Here, Lessig credits someone else with helping to create the final product, perhaps affirming Deven’s point about his modesty. At a minimum, though, he deserves credit for his excellent judgment, in recognizing a good thing when he sees it.
January 15, 2008 at 3:36 pm
Posted in: Law School, Law School (Teaching), Teaching
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The New Hall Monitors
posted by Robert Ahdieh
The front page of today’s Washington Post reports on a recent explosion in the number of corporate “monitorships,” noting a sevenfold increase since 2001. In these cases, the article reports, federal prosecutors direct contracts to private parties, who are given responsibility to oversee sometimes radical reconstructions of companies charged with fraud or other wrongdoing. The often hefty bill, of course, goes to the relevant company.
Much of the analysis in the article speaks to potential corruption/favoritism in the appointment of individuals to fill these lucrative positions. The article notes the appointment of “various former prosecutors and SEC officials with ties to President Bush, his father and other Republican luminaries,” before focusing on a particular case out of New Jersey. (Which choice I saw, as a perhaps overly defensive temporary resident, to play on pernicious stereotypes of this fair state…)
I was more interested, however, to think about the nature of the institution of “monitors” more generally. What, I wondered, were potential analogies in our schemes of law and governance? Court-appointed special masters immediately came to mind. Naturally, there’s some whiff of our sorely missed independent counsels. Perhaps given my international interests, I somehow thought of the U.N. trusteeship system as well, which in turn brought to mind the various uses of private trustees in the U.S. bankruptcy system.
January 15, 2008 at 10:58 am
Posted in: Administrative Law, Bankruptcy, Contract Law & Beyond, Corporate Law, Criminal Law
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If It Bleeds, It Leads
posted by Robert Ahdieh
In an interesting twist on the old adage of broadcast journalism, “if it bleeds, it leads,” CNN.com has quietly modified the news categories on its home page, to replace “Law” with “Crime”. When you follow the “Crime” link, you find somewhat greater diversity of coverage, now under the heading of “Crime and Justice”.
Perhaps tellingly, though, consider the two teaser headlines on the home page, as I’m typing this post:
“Blood near Marine’s likely grave, sheriff reports”
“O.J. Simpson headed to Las Vegas jail cell”
“Crime” is clearly a lot easier a sell than “Law”. What might that forebode, though, for the general public’s notions of law? What long-term consequences can we expect of a consumer-driven orientation of the mass media to covering “crime” versus “law”? Perhaps few. Perhaps CNN.com is simply a place to go for entertainment and titillation anyway. In that case, it doesn’t much matter whether the coverage is of blood spatter or of the Supreme Court. But if this is supposed to be “the news” – somehow, the idea of “All the News That’s Fit to Print” comes to mind – I have to wonder.
January 12, 2008 at 8:10 am
Posted in: Criminal Law, Current Events, Media Law, Sociology of Law
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Are Tax Cuts Inspirational?
posted by Robert Ahdieh
Rudy Giuliani has issued a new television ad, in which he promises, with stirring – perhaps almost inspirational – music in the background, to cut taxes. No, not simply to cut taxes, but to cut them by “trillions of dollars.” “[O]n his first day in office,” in fact, he “will send Congress the largest tax cut in American history.” For all the dramatic music, the bold words “trillions of dollars” on the screen, and Giuliani’s obvious excitement about the possibility, however, I was somehow left unmoved.
Perhaps that isn’t especially surprising, given my general attitudes about society’s obligations to open doors of opportunity for those without opportunities, and to support those of its members in need. But do those who disagree with me actually respond differently to a promise to introduce “the largest tax cut in American history”? Does introducing such a tax represent a stirring moment in American history? Will American elementary school students one day study Washington’s refusal to stand for another term, Lincoln’s Gettysburg’s Address, Roosevelt’s address to Congress following Pearl Harbor, and Giuliani’s massive tax cut?
More seriously, it’s hard to imagine that the inspirational quality of tax cuts is about (the possibility of) a higher growth rate in the economy. Significant as the latter is, I don’t see many folks crying about it. Is it just about having more money in one’s pocket on April 16th? Surely some, with desperate needs, might find such savings to be intensely felt. But just as surely, everyone knows by now that tax cuts in the “trillions of dollars” aren’t about those with such desperate needs.
It’s possible, I suppose, that “tax cuts” are today a kind of short hand for individual freedom and liberty. They’re what Tom Paine would talking about, if he were alive today and trying to get people excited about his notions of governing best by governing least. But can tax cuts really stand in as an effective rhetorical substitute for freedom and liberty? Wouldn’t Giuliani do better to tell us exactly why “the largest tax cut in American history” would be so exciting?
January 11, 2008 at 2:08 pm
Posted in: Uncategorized
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I’m Sorry… Sincerely, The IRS
posted by Robert Ahdieh
Today, the New York Times reports, the National Taxpayer Advocate delivered her annual report to Congress. First established in 1998, the Taxpayer Advocate Service describes itself as “an independent organization within the IRS that assists taxpayers who are experiencing economic harm, who are seeking help in resolving tax problems that have not been resolved through normal channels, or who believe that an IRS system or procedure is not working as it should.” Judging by the generous use of exclamation points on its home page, moreover, the Service would appear to be quite excited about this mission.
Among other things, I was struck by certain aspects of the IRS’ present-day operations that the annual report critiques. I hadn’t realized, for example, that the IRS makes widespread – if ineffectual – use of private debt collectors, or that it charges (sometimes substantial) fees to respond to taxpayer inquiries.
Two reform proposals in the annual report, however, particularly caught my eye:
First, there is the Advocate’s proposal to adopt a new taxpayer bill of rights – an odd-seeming concept, to begin with. (Isn’t the Administrative Procedure Act the “bill of rights” of the modern administrative state?) This bill of rights, moreover, would include a list of taxpayer “responsibilites,” including requirements that they (in the Times‘ words) “conduct themselves honestly and [] cooperate with auditors and tax collectors.” But what exactly is the “honest conduct” the Advocate has in mind? Avoiding fraudulent statements to the IRS? Surely, we’ve already got that covered. What’s other honest conduct might be expected? Some general promise of good and clean living?
Even more eye-catching were the report’s proposed “Apology Payments,” to be doled out by the Advocate’s office – in amounts ranging from $100 to $1,000, and up to a collective cap of $1 million – to taxpayers who suffer “excessive expense or undue burden” because of IRS error or delay. Leaving aside the procedural complexities of such a scheme, are there analogous arrangements to be found in other areas of law? (The Times reports that the U.K. and Australia already have such a scheme in their tax code.) Do we do it anywhere else?
January 9, 2008 at 8:05 pm
Posted in: Current Events, Tax, Weird
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AALS: A Modest Dissent
posted by Robert Ahdieh
Many thanks to Dan for the welcome, and to all the Concurring Opinion permabloggers for inviting me to visit. As a long-time reader, I’m glad to make my first – and hopefully not last – foray into the blogosphere here.
In posts preceding the recently concluded Association of American Law Schools (AALS) Annual Meeting, Brian Leiter and Orin Kerr respectively questioned the intellectual content, and suggested the underwhelming quality, of AALS conference programming – or at least that part of the “programming” that occurs in the hotel’s ballrooms, as opposed to its lobby and various hallways, and at an array of nearby restaurants and bars. This critique is hardly unique to them, moreover. Rather, it seems to constitute the conventional wisdom.
Having spent almost three days last week not simply “at AALS” in the abstract, but actually at the conference site (I’m close enough to the City not to have devoted time to shopping and sightseeing), I thought I would devote my first post to offering a modest dissent from the Leiter, Kerr, et al. critique.
Of course, there is the standard defense of the AALS annual meeting as an occasion for systematic schmoozing – a species of speed dating for law professors. (On this count, I might note that this year’s venue – the Hilton New York – had some real strengths. One could basically set oneself on an infinite loop up and down the escalators at either end of the second and third floor (see the 3-D tour) – where most of the schmoozing took place – for the entire weekend.) But a defense of schmoozing would be too easy: What’s not to like about it? Instead, I want to suggest that AALS may have merit of the intellectual variety, notwithstanding Brian and Orin’s critique.
January 8, 2008 at 11:05 am
Posted in: Conferences, Current Events, Law School, Law School (Scholarship)
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