Category: General Law

Just What the Oil Industry Needs: More Trade Secrecy

I have tried to give the Obama Administration the benefit of the doubt during the Gulf/BP oil disaster. There was a “grand ole party” at Interior for at least eight years. Many Republicans in Congress would have tried to block nominees for Interior who were committed to a major overhaul of the department’s environmental priorities. But the more I read about the controversy, the harder it gets to excuse current players for their actions. Consider just one issue: the use of dispersants in response to the spill.

As Tom Dickinson’s excellent Rolling Stone article describes the issue,

On May 14th, two days after the first video of the gusher was released, the government allowed BP to apply a toxic dispersant that is banned in England at the source of the leak – an unprecedented practice in the deep ocean. “The effort should be in recovering the oil, not making it more difficult to recover by dispersing it,” says Sylvia Earle, a famed oceanographer and former NOAA chief scientist who helped the agency confront the world’s worst-ever oil spill in the Persian Gulf after the first Iraq War. The chemical assault appeared geared, she says, “to improving the appearance of the problem rather than solving the problem.”

Now we are learning that the some of the dispersants had “no toxicity studies” done to support their use, and we cannot even find out what is in them:
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Judged by the Company You Keep

Last week, I tried to outline the difficulties associated with measuring judicial ideology in regards to the limited alternatives that have been offered by scholars. In this post, I hope to describe how I have measured it and attempted to overcome the various obstacles brought about by my methodology.

My idea for identifying the ideologies of federal appellate judges was to determine the rates at which such judges agree and disagree with “conservatives” and “liberals” on the bench. The assumption was that like-minded judges will vote together more often and judges with dissimilar ideologies will tend to disagree. By focusing on the agreements and disagreements among the judges, the goal was to pinpoint their respective ideologies (via “ideal points”). This is an agnostic method that necessarily faces all of the shortcomings of such an approach that I previously described.

The initial concern with such a method is that there are far too few disagreements among the judges on the Courts of Appeals. Indeed, in the 10,242 cases in my dataset, there were only 288 dissents (including partial dissents). Some judges who participated in over 100 cases were not on a panel in which there was a single dissenting vote. Looking at the Courts of Appeals alone was, thus, unlikely to offer much information. My solution was to treat the district judges being reviewed as pseudo-fourth members of the appellate panel. After all, the district judge reviewed the same legal issue as the appellate panel and rendered judgment on that very same issue. Notably, there are far more disagreements with district judges in the form of reversals. Also, by including the district judges, my methods also allowed data to be harvested from unanimous affirmances as well (as described below). Read More


Rubber Bands v. Rocks: Metaphors Regarding Corporate Control

My reaction: is an LLC governed by rocks made from bands?

Grading exams is a notoriously tedious exercise, enlivened by the occasional sentence that makes you perk up.  Here’s one from my latest corporation exam:

“A firm of 100 shareholders is controlled like a boat being pulled by rubber bands — it’s not direct, it’s not exact, no one person is really in control.  A firm of 10,000 shareholders is more like a boat being controlled by people hitting it with rocks.”

It’s a striking image – leveraged to explain and justify current veil piercing doctrine. Lamentably, most of the other fun  comments I read appeared to be accidental malapropisms.   It’s tough to write something genuinely interesting and/or fresh on an exam.  So I thought I’d use it to introduce a comment thread for other examples from your exams.


The Future of the OLC

James Madison reminded us that enlightened statesmen will not always be at the helm. One solution to this problem is to design institutions to fulfill checking functions, which in turn requires those institutions to be staffed with, well to a large extent, enlightened statesmen who are competent and serve with integrity. No different than elected officials, institutional staff will not always be enlightened either. One such institution, the Office of Legal Council, which provides binding legal opinions for the executive branch, has struggled to conform to enlightenment ideals. Indeed, a predominate enlightenment ideal was the abolition of torture by governing officials (see Lynn Hunt’s historical account). Yet, as we all know, this very office provided legal authorization for practices all but a very few consider torture, and even more, argued that existing legal limits on the use of torture would not bind the President in exercise of his Commander in Chief powers. One of the criticisms of the office as it operated under Jay Bybee and John Yoo was that it no longer served its function as an independent institution designed to ensure that the President fulfills a constitutional duty to “take care that the laws be faithfully executed.” Rather, the office began to provide the President the advice he wanted to hear. Or, in the words of Anthony Lewis regarding the infamous torture memo: “The memo reads like the advice of a mob lawyer to a mafia don on how to skirt the law and stay out of prison. Avoiding prosecution is literally a theme of the memorandum.”

Dawn Johnsen, President Obama’s pick to lead the OLC, was compelled to withdraw because the Senate refused to act on her nomination. She writes a compelling case today in the Washington Post for filling that post soon. She, with others (including the current acting Assistant Attorney General, David Barron), advocate returning the office to its independent role in providing accurate legal analysis for the executive branch. With others, she has articulated a statement of the key principles necessary for restoring the independence and integrity of the OLC. If we cannot have more robust institutional reform of the kind Bruce Ackerman suggests—a Senate confirmable executive tribunal whose members serve as independent judges for the executive branch—we can at least have a fully functioning independent institution as Johnsen argues. Without reform that begins with leadership of the kind Johnsen would have provided, we are left vulnerable to the next unenlightened official to staff the institution.

Oil Addiction?

Responding to the ever-deepening crisis of the BP spill, Andrew Sullivan writes the following:

[Y]ou have to be emotionally and spiritually dead not to watch this and not feel some deep qualms about what our civilization is doing to its environment and to itself. The addiction metaphor – even used by George W. Bush by the end of his term – is the only apposite one. We’re like junkies trying to find a new vein. It keeps us alive and growing, but that simply brings into sharper focus the moral and spiritual costs of exploitation of the earth rather than prudent stewardship.

To sharpen the point, I’d say the impending loss of the gulf is a bit reminiscent of the closing scenes in the film “Requiem for a Dream,” where an addict’s arm is at stake. But another conservative, Jeff Jacoby, takes the following position:

[In 1974,] psychiatrist Thomas Szasz wrote in The New York Times that “oil addiction is equivalent to drug addiction.’’ But it’s not. . . . Americans consume oil not because they are “addicted’’ to it, but because it enriches their lives, making possible prosperity, comfort, and mobility that would have been all but unimaginable just a few generations ago. . . . The United States consumes more than 300 billion gallons of oil per year, nearly two-thirds of it imported. . . . What we have isn’t an addiction, but a blessing.

What I find curious about the professed “conservatism” of Jacoby’s position is that it rests on an attitude of entitlement and self-indulgence that conservatives seem to find repugnant in so many other contexts. As usual, Andrew Bacevich lays out the broader context precisely:

[Mainstream] Democrats agree with Republicans on the “concrete interests” of Americans: preserving what Bacevich calls our “empire of consumption.” ([Bacevich] borrowed the term from Harvard historian Charles Maier.) After WWII, the US was an “empire of production” – “we made the stuff that everybody else wanted.” So the country did not go into debt. “But we have increasingly become a culture that emphasizes consumption – limitless consumption . . . while others, notably China and Japan, have become the source of the goods we consume. There’s something fundamentally out of whack here. This disparity between what we produce and what we consume is simply not sustainable.”

To quantify matters: “Between 1995 and 2005, U.S. consumption grew from 17.7 million barrels a day to 20.7 million barrels a day, a 3 million barrel a day increase. China, by comparison, increased consumption from 3.4 million barrels a day to 7 million barrels a day, an increase of 3.6 million barrels a day, in the same time frame.” In other words, with less than a third of the population of China, the U.S. increased its oil consumption over a decade-long period by nearly the same amount as the entire nation of China began with! We continued building bigger cars, and bigger houses, ever further apart, assuring an ever-deeper environmental footprint.

Given the fungibility of food and fuel, we are effectively starving people to feed cars. The type of lifestyle that Jacoby celebrates may not have been a self-harming addiction as long as the structural violence it fueled was kept far away. Now it’s at the gulf coast. Perhaps Jacoby will “get it” if the loop current feeds tarballs up to the Cape.

Photo Credit: EtienneCoutu.


Saving Lives

Former President George W. Bush commented recently: “Yeah, we water-boarded Khalid Sheikh Mohammed,” adding, “I’d do it again to save lives.” Much has already been said about the fact that KSM was waterboarded 183 times, and whether this constitutes a war crime warranting prosecution. Bush’s comment certainly reopens that issue, but I want to focus on what it means to say regarding torture, that “I’d do it again to save lives.”

One response is to contest the factual assumption of the claim—that torture of KSM actually saved lives. David Luban’s analysis of the claim, for example, suggests that it is highly doubtful. But let’s assume that there is some factual basis for the claim that torture of KSM saved lives. But let’s also agree on the consensus that waterboarding constitutes torture, as Attorney General Holder has made clear. I want to comment on two further aspects of Former President Bush’s statement regarding necessity and the social imaginary.

What principle might justify Bush’s claim? Can we reconstruct Bush’s enthymeme? Begin with the general principle that the President has a textually explicit duty through the Oath Clause to preserve and protect the Constitution, as well as an implied duty to protect the American people. We can say that saving lives against security threats is a constitutional duty. It is also clear that members of international terrorist organizations pose a threat to American lives. Assuming that waterboarding is an effective technique, then waterboarding members of such terrorist organizations like KSM protects American lives. According to this argument, the duty to protect American lives leads to the necessity of waterboarding.

But is this duty to be pursued by any means necessary? Are there limits to the means by which the President can pursue the goal of protecting the American people?

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Suppressing Speech and Suppressing Dueling

Of late I have been doing some research on the relationship between dueling and litigation in the 18th and 19th centuries. An integral part of the Code Duello was the practice of “posting someone a coward.” If a gentleman refused to give satisfaction on the field of honor to a gentleman he had offended, then the victim would print broadsides or take out newspaper advertisements announcing that so-and-so, previously thought a gentleman was in fact a coward. In an effort to suppress the practice of dueling, the Texas legislature adopted the following law:

If any person or persons hall, in any newspaper, or handbill, written or printed, publish or proclaim any other person or persons as a coward or cowards, or use other opprobrious and abusive language for not accepting a challenge, or fighting a duel, such person or persons so offending shall, on conviction, be punished by a fine not exceeding five hundred dollars, and imprisonment in the common jail of the county not exceeding sixty days, at the discretion of the court.

I haven’t seen anything about convictions under this law. Notice, that it is drafted so that it probably sweeps up more than simply “posting” someone for refusing a challenge. Journalists wishing to comment on the courage of Texas politicians refusing a challenge should proceed cautiously.


A New World of Possibilities

As Congress labors to adopt financial markets reform, it is not surprising that the legislation that members have proposed centers on addressing moral hazard concerns – fears that institutions deemed “too big to fail” seek government assistance when facing threats of insolvency. Proposed reform provisions and amendments suggest, among other measures, segregating business lines that engender excessive risk from commercial and individual savings or deposit businesses and limiting the size of banks. These valuable and important suggestions are newsworthy because of what they aim to accomplish (whether or not the goals are feasible – see here): the prevention of  future credit and liquidity crises. Another story receiving less fanfare, is, however, developing in the margins. The G-20 has initiated efforts to gather international banking regulators, finance scholars and banking executives together to revisit the Basel accords and adopt international capital requirements for banking institutions. These efforts focus on creating a more resilient banking sector and preventing the collapses and near-collapses witnessed in the most recent crisis. As predicted, regulators from differing countries have a diversity of viewpoints regarding issues such as the appropriate amount of leverage that institutions may use, banks inclusion of commercial and individual savings deposits as a factor in calculating liquidity or simply, the timing of the implementation of reforms.

Hopefully, the international banking regulators will identify all of the correct concerns and adopt effective resolutions. Even if banking regulators fail to adopt and implement ideal reforms, their collaborative process may offer a critical illustration of the necessary coordination that must occur for any individual nation to obtain safety and soundness within its national banking sector. The cooperative efforts of the G-20 illustrate the benefits of the theory of transgovernmentalism, a model that posits that regulatory networks present an increasingly invaluable element in resolving threats to international infrastructure systems such as finance markets or the environment. Resting upon the notion of “disaggregated sovereignty,” the theory of transgovernmentalism suggests that the sum of different nations’  bureaucratic parts – regulatory agents and agencies, scholars and professionals- is greater than the whole.“[U]nbundling the state–and reconnecting the constituent parts across national borders” establishes networks of relationships among the many crucial interests in a regulated industry. (See here.) Appropriate oversight of increasingly interwoven finance markets requires greater efforts to establish collaborative regulation within our federal administrative network and the broader international network.


Indiana Supreme Court

Let me start by saying that you can set your watch to Bud Selig making the wrong decision.  If he doesn’t reverse the ump’s call and give the guy a perfect game, it’s an outrage.  But I digress . . .

There is a vacancy on the Indiana Supreme Court for the first time since 1999 (Ted Boehm, an excellent judge and a terrific lawyer, announced that he will step down this fall).  The process for selecting his replacement is very different from the federal model and is worth talking about.

First, the Indiana Constitutions sets forth eligibility requirements for a Justice.  They must have been either: (1) a member of the state bar for at least ten years; or (2) a sitting state court judge for at least five years.  A commission chaired by the Chief Justice and made up of three political appointees and three attorneys elected by the bar association then screens the applicants and forwards three names to the Governor.  The Governor must pick one of these three nominees, and that person then becomes a Justice.  (There is no role for the State Legislature.)

Would something like this be a good idea at the federal level?  What do you think?


Vice-Presidential Ticket Splitting

The new British Government is the country’s first coalition since World War Two.  This got me to thinking about whether something like that could happen here.  Divided government (one party controls the White House, the other controls Congress) functions like a coalition, but what about divided government within the Executive Branch?

Try this one on for size. Suppose Indiana gave its citizens an independent vote for VP.  In other words, instead of:

Obama/Biden, McCain/ Palin

You would have this:

Obama, McCain, Biden, Palin

As far as I can see, nothing in the Twelfth Amendment or federal law requires that the president and vice-president run on a single ballot.  (Indeed, the Twelfth Amendment requires the electors to take separate votes for President and VP). Thus, any state could experiment with ticket-splitting.  This would, of course, increase the likelihood that one party would win the presidency and the other the vice-presidency.

Now would this create a coalition?  Well, sort of.  A President in that split situation could sideline the VP, but that would be difficult for two reasons.  First, the VP would have an independent electoral mandate.  Second, federal law gives the VP certain responsibilities (a seat on the National Security Council, for example) that cannot be removed by the President unilaterally.  States, of course, sometimes have separate votes for Governor & Lt. Gov. (though in most states the Lt. Gov. has no official function other than succeeding a Governor), and that may be a useful source of information.  But it’s worth thinking about.