As the debate over the 1976 District of Columbia gun ban demonstrates, "gun control" often covers for a hidden agenda. British Cabinet papers declassified in 1969-70 demonstrate that contrary to claims made in Parliamentary debates, the intent of the Firearms Act 1920 was not to reduce or prevent crime, but to prevent a feared Bolshevik revolution in Britain. Direct statements by members of the Cabinet demonstrate an intent to mislead the public about their objectives.
{"title":"Gun Control: Political Fears Trump Crime Control","authors":"Clayton E. Cramer, J. Olson","doi":"10.2139/SSRN.1083528","DOIUrl":"https://doi.org/10.2139/SSRN.1083528","url":null,"abstract":"As the debate over the 1976 District of Columbia gun ban demonstrates, \"gun control\" often covers for a hidden agenda. British Cabinet papers declassified in 1969-70 demonstrate that contrary to claims made in Parliamentary debates, the intent of the Firearms Act 1920 was not to reduce or prevent crime, but to prevent a feared Bolshevik revolution in Britain. Direct statements by members of the Cabinet demonstrate an intent to mislead the public about their objectives.","PeriodicalId":166493,"journal":{"name":"Legislation & Statutory Interpretation eJournal","volume":"570 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-02-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134101216","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The controversy within the United States over Chinese exchange rate policy has generated a series of legislative proposals to restrict the discretion of the Treasury Department in determining currency manipulation and to reform the department's accountability to Congress. This paper reviews Treasury's reports to Congress on exchange rate policy—introduced by the 1988 Trade Act—and Congress's treatment of them. It finds that the accountability process has often not worked well in practice: The reports provide only a partial basis for effective congressional oversight. For its part, Congress held hearings on less than half of the reports and overlooked some important substantive issues. Several recommendations can improve guidance to the Treasury, standards for assessment, and congressional oversight. These include (1) refining the criteria used to determine currency manipulation and writing them into law, (2) explicitly harnessing US decisions on manipulation to the International Monetary Fund's rules on exchange rates, (3) clarifying the general objectives of US exchange rate policy, (4) reaffirming the mandate to seek international macroeconomic and currency cooperation, (5) requiring Treasury to lead an executivewide policy review, and (6) institutionalizing multicommittee oversight of exchange rate policy by Congress. Legislators should strengthen reporting and oversight of broader exchange rate policy in addition to strengthening the provisions targeting manipulation.
{"title":"Congress, Treasury, and the Accountability of Exchange Rate Policy: How the 1988 Trade Act Should Be Reformed","authors":"C. Henning","doi":"10.2139/SSRN.1012640","DOIUrl":"https://doi.org/10.2139/SSRN.1012640","url":null,"abstract":"The controversy within the United States over Chinese exchange rate policy has generated a series of legislative proposals to restrict the discretion of the Treasury Department in determining currency manipulation and to reform the department's accountability to Congress. This paper reviews Treasury's reports to Congress on exchange rate policy—introduced by the 1988 Trade Act—and Congress's treatment of them. It finds that the accountability process has often not worked well in practice: The reports provide only a partial basis for effective congressional oversight. For its part, Congress held hearings on less than half of the reports and overlooked some important substantive issues. Several recommendations can improve guidance to the Treasury, standards for assessment, and congressional oversight. These include (1) refining the criteria used to determine currency manipulation and writing them into law, (2) explicitly harnessing US decisions on manipulation to the International Monetary Fund's rules on exchange rates, (3) clarifying the general objectives of US exchange rate policy, (4) reaffirming the mandate to seek international macroeconomic and currency cooperation, (5) requiring Treasury to lead an executivewide policy review, and (6) institutionalizing multicommittee oversight of exchange rate policy by Congress. Legislators should strengthen reporting and oversight of broader exchange rate policy in addition to strengthening the provisions targeting manipulation.","PeriodicalId":166493,"journal":{"name":"Legislation & Statutory Interpretation eJournal","volume":"55 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2007-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128645330","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Australia's national securities commission - the Australian Securities and Investments Commission (ASIC) - sees the stockbroker's or investment adviser's obligation to act efficiently, honestly and fairly in s 912A(1)(a) of Australia's Corporations Act as both a stand-alone obligation that a broker or adviser (an Australian Financial Services (AFS) licensee) must satisfy, and an obligation that encompasses other obligations under their AFS license. A licensee may be in breach of its statutory obligation to provide services efficiently, honestly and fairly even if it is complying with all of its other specified obligations. This general obligation includes personal competencies, and imposes continuing obligations on the licensee and its representatives when providing financial services from the beginning of the relationship to its end. Included in the licensee's obligations are its duties as an employer to its employees, even if intermingled with other obligations regarding financial services. The obligation of acting efficiently, honestly and fairly parallels legal action under other sections in the Corporations Act. The importance of the test is that it triggers ASIC's administrative procedure of suspending, canceling or banning an offender for breach of the obligation to act efficiently, honesty and fairly. This can present potential problems because it allows ASIC to bypass specific provisions in the Corporations Act, avoid the decision whether to pursue civil or criminal proceedings, avoid briefing prosecutors and allows it to deal with the matter by means of the administrative process of suspending, canceling or banning a licensee for breach of the obligation to act efficiently, honestly and fairly. Even criminal activity such as false transfers, false entries, illegal trading and manipulation - which ASIC may classify as gross misconduct - can be dealt with administratively for failure to provide financial services efficiently, honestly and fairly. The test of whether financial services are provided efficiently, honestly and fairly is written in plain English. It is not encumbered with existing interpretations and its scope is not fixed, so it cannot become obsolete, and like the evolution of Trade Practices Act 1974 (Cth) s 52, the expected standard of the financial services licensee of efficiency, honesty and fairness will continue to evolve to meet new situations in the marketplace for financial services.
{"title":"Providing Financial Services 'Efficiently, Honestly and Fairly'","authors":"P. Latimer","doi":"10.2139/SSRN.1326181","DOIUrl":"https://doi.org/10.2139/SSRN.1326181","url":null,"abstract":"Australia's national securities commission - the Australian Securities and Investments Commission (ASIC) - sees the stockbroker's or investment adviser's obligation to act efficiently, honestly and fairly in s 912A(1)(a) of Australia's Corporations Act as both a stand-alone obligation that a broker or adviser (an Australian Financial Services (AFS) licensee) must satisfy, and an obligation that encompasses other obligations under their AFS license. A licensee may be in breach of its statutory obligation to provide services efficiently, honestly and fairly even if it is complying with all of its other specified obligations. This general obligation includes personal competencies, and imposes continuing obligations on the licensee and its representatives when providing financial services from the beginning of the relationship to its end. Included in the licensee's obligations are its duties as an employer to its employees, even if intermingled with other obligations regarding financial services. The obligation of acting efficiently, honestly and fairly parallels legal action under other sections in the Corporations Act. The importance of the test is that it triggers ASIC's administrative procedure of suspending, canceling or banning an offender for breach of the obligation to act efficiently, honesty and fairly. This can present potential problems because it allows ASIC to bypass specific provisions in the Corporations Act, avoid the decision whether to pursue civil or criminal proceedings, avoid briefing prosecutors and allows it to deal with the matter by means of the administrative process of suspending, canceling or banning a licensee for breach of the obligation to act efficiently, honestly and fairly. Even criminal activity such as false transfers, false entries, illegal trading and manipulation - which ASIC may classify as gross misconduct - can be dealt with administratively for failure to provide financial services efficiently, honestly and fairly. The test of whether financial services are provided efficiently, honestly and fairly is written in plain English. It is not encumbered with existing interpretations and its scope is not fixed, so it cannot become obsolete, and like the evolution of Trade Practices Act 1974 (Cth) s 52, the expected standard of the financial services licensee of efficiency, honesty and fairness will continue to evolve to meet new situations in the marketplace for financial services.","PeriodicalId":166493,"journal":{"name":"Legislation & Statutory Interpretation eJournal","volume":"19 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2006-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127773585","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Private interests expend great amounts of resources attempting to influence government decisions using tools such as campaign contributions and lobbying. Yet, little is known about whether they use means fair or foul to achieve their goals. A better understanding of how private interests influence government, specifically whether they use corruption, is vital for informing debate on how such activities should be regulated. This paper presents two empirical attempts to measure the presence of corruption in state public finance. In the first it investigates whether campaign contributions caused corruption in the public finance industry of the early 1990s using an event study methodology. In the second it investigates the current controversy surrounding the use of lobbyists in public finance and whether their use is linked to corruption using a methodology that exploits state heterogeneity in the supply of corrupt decision makers. In both cases it finds strong evidence of corruption.
{"title":"Do Campaign Contributions and Lobbying Corrupt? Evidence from Public Finance","authors":"Gajan Retnasaba","doi":"10.2139/ssrn.1003890","DOIUrl":"https://doi.org/10.2139/ssrn.1003890","url":null,"abstract":"Private interests expend great amounts of resources attempting to influence government decisions using tools such as campaign contributions and lobbying. Yet, little is known about whether they use means fair or foul to achieve their goals. A better understanding of how private interests influence government, specifically whether they use corruption, is vital for informing debate on how such activities should be regulated. This paper presents two empirical attempts to measure the presence of corruption in state public finance. In the first it investigates whether campaign contributions caused corruption in the public finance industry of the early 1990s using an event study methodology. In the second it investigates the current controversy surrounding the use of lobbyists in public finance and whether their use is linked to corruption using a methodology that exploits state heterogeneity in the supply of corrupt decision makers. In both cases it finds strong evidence of corruption.","PeriodicalId":166493,"journal":{"name":"Legislation & Statutory Interpretation eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2006-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128981740","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Since 1978, at least, it has been the received wisdom that the Endangered Species Act of 1973' prohibits courts from balancing the value of protected species against the value of the economic activities their protection might displace. In this article, I argue that the orthodoxy makes sense. The Endangered Species Act, as currently administered, cannot tolerate judicial balancing of species harm and economic dislocation while still honoring the purpose of the statute - the preservation and recovery of protected species and the ecosystems on which they depend. The inadvisability of a balancing approach to species preservation under the Act is not the function of a value judgment exalting animals over humans. Rather, it is the direct result of the administrative and judicial application of the Act's listing process. The agencies charged with making the administrative determinations as to what constitutes an endangered species have interpreted the statutory definition to cover only species dramatically reduced in distribution and numbers and, generally, subject to multiple threats. It is a bad idea to balance the value of most endangered species against the economic cost of their protection because their circumstances are so precarious. Once a species is perched on the brink of extinction, compromise becomes unacceptably dangerous; what may look like "reasonable" accommodation may lead to annihilation. If we really intend to protect species from extinction, the allowable minimum level of regulatory prohibition and active management is that level necessary to insure a good chance of species survival in the long term (however defined). Because we only list species in dire need of protection and assistance, this "minimum level of protection" generally requires, at least, the level of regulatory prohibition the Endangered Species Act provides.
{"title":"Butterflies, Cave Spiders, Milk-Vetch, Bunchgrass, Sedges, Lilies, Checker-Mallows and Why the Prohibition Against Judicial Balancing of Harm Under the Endangered Species Act is a Good Idea","authors":"Federico Cheever","doi":"10.2139/SSRN.2536565","DOIUrl":"https://doi.org/10.2139/SSRN.2536565","url":null,"abstract":"Since 1978, at least, it has been the received wisdom that the Endangered Species Act of 1973' prohibits courts from balancing the value of protected species against the value of the economic activities their protection might displace. In this article, I argue that the orthodoxy makes sense. The Endangered Species Act, as currently administered, cannot tolerate judicial balancing of species harm and economic dislocation while still honoring the purpose of the statute - the preservation and recovery of protected species and the ecosystems on which they depend. The inadvisability of a balancing approach to species preservation under the Act is not the function of a value judgment exalting animals over humans. Rather, it is the direct result of the administrative and judicial application of the Act's listing process. The agencies charged with making the administrative determinations as to what constitutes an endangered species have interpreted the statutory definition to cover only species dramatically reduced in distribution and numbers and, generally, subject to multiple threats. It is a bad idea to balance the value of most endangered species against the economic cost of their protection because their circumstances are so precarious. Once a species is perched on the brink of extinction, compromise becomes unacceptably dangerous; what may look like \"reasonable\" accommodation may lead to annihilation. If we really intend to protect species from extinction, the allowable minimum level of regulatory prohibition and active management is that level necessary to insure a good chance of species survival in the long term (however defined). Because we only list species in dire need of protection and assistance, this \"minimum level of protection\" generally requires, at least, the level of regulatory prohibition the Endangered Species Act provides.","PeriodicalId":166493,"journal":{"name":"Legislation & Statutory Interpretation eJournal","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1997-12-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117111787","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In the middle of the twentieth century, legal realist Karl Llewellyn largely persuaded the legal community that the canons of construction are indeterminate, and judges use them to justify reasoning by other means. Toward the end of the twentieth century, however, the canons enjoyed a strong revival, both with the federal judiciary and across a surprisingly broad range of legal academies. This essay offers a hypothesis about the canons’ revival. Llewellyn is justly regarded as a lion of the realist movement, and his critique of the canons is one of the most influential realist works of the last century. But the early success of his critique may, in fact, relate to the declining post-World War II fortunes of legal realism in statutory interpretation theory. In the same period in which he made his critique of the canons, most judges and legal scholars came to the view judges could meaningfully resolve textual ambiguity by consulting the legislature's intent or purpose, to be derived in no small part from legislative history. Conversely, the impact of Llewellyn’s critique of the canons impact began to wane in the 1980s, when influential textualist and pragmatist scholars revived (for quite different reasons) broader realist claims about the inaccessibility and unreliability of legislative intent or purpose as organizing principles in statutory construction. In economists' terms, canons of construction and intent or purpose may be substitutes, rather than complements, in determining statutory meaning. On that view, the canons' revival may simply be the flip side of the growing perception that the early realists were correct in arguing that it is hard to get inside “Congress's mind.” The essay elaborates on this point and then briefly suggests preliminary implications of this conclusion.
{"title":"Legal Realism and the Canons’ Revival","authors":"J. Manning","doi":"10.2139/ssrn.2852116","DOIUrl":"https://doi.org/10.2139/ssrn.2852116","url":null,"abstract":"In the middle of the twentieth century, legal realist Karl Llewellyn largely persuaded the legal community that the canons of construction are indeterminate, and judges use them to justify reasoning by other means. Toward the end of the twentieth century, however, the canons enjoyed a strong revival, both with the federal judiciary and across a surprisingly broad range of legal academies. This essay offers a hypothesis about the canons’ revival. Llewellyn is justly regarded as a lion of the realist movement, and his critique of the canons is one of the most influential realist works of the last century. But the early success of his critique may, in fact, relate to the declining post-World War II fortunes of legal realism in statutory interpretation theory. In the same period in which he made his critique of the canons, most judges and legal scholars came to the view judges could meaningfully resolve textual ambiguity by consulting the legislature's intent or purpose, to be derived in no small part from legislative history. Conversely, the impact of Llewellyn’s critique of the canons impact began to wane in the 1980s, when influential textualist and pragmatist scholars revived (for quite different reasons) broader realist claims about the inaccessibility and unreliability of legislative intent or purpose as organizing principles in statutory construction. In economists' terms, canons of construction and intent or purpose may be substitutes, rather than complements, in determining statutory meaning. On that view, the canons' revival may simply be the flip side of the growing perception that the early realists were correct in arguing that it is hard to get inside “Congress's mind.” The essay elaborates on this point and then briefly suggests preliminary implications of this conclusion.","PeriodicalId":166493,"journal":{"name":"Legislation & Statutory Interpretation eJournal","volume":"48 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127888608","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article explores Congress’s recent trend of creating quasi-legislative independent commissions to augment its own investigations, and determines what factors may enhance the chance that a commission will prove successful. Although Congress has never been the lone forum for investigations, since 2001 the legislature has been empanelling entities of outside experts to investigate the most significant economic and national security issues. This Article begins with a history of governmental investigations in America, highlighting activity by Congress, independent agencies, and presidential commissions. Next, it describes the modern political, communications, and scheduling strains on Congress that have created an opportunity for new types of investigations, and offers case studies of three quasi-legislative independent commissions – the Commission on Terrorist Attacks Upon the United States, the Commission on Wartime Contracting in Iraq and Afghanistan, and the Financial Crisis Inquiry Commission. Then, this Article scrutinizes these case studies and concludes that a quasi-legislative independent commission is most likely to be successful where it has a limited scope and investigative flexibility, features members seen as free from political pressures, uses discretion in compelling information, and ties its mission to larger legislative reform. Finally, this Article concludes by offering advice to practitioners on how to best represent clients before quasi-legislative independent commissions.
{"title":"The Rise and Permanence of Quasi-Legislative Independent Commissions","authors":"S. Ross, Raphael Prober, G. Gillett","doi":"10.2139/SSRN.1942573","DOIUrl":"https://doi.org/10.2139/SSRN.1942573","url":null,"abstract":"This article explores Congress’s recent trend of creating quasi-legislative independent commissions to augment its own investigations, and determines what factors may enhance the chance that a commission will prove successful. Although Congress has never been the lone forum for investigations, since 2001 the legislature has been empanelling entities of outside experts to investigate the most significant economic and national security issues. This Article begins with a history of governmental investigations in America, highlighting activity by Congress, independent agencies, and presidential commissions. Next, it describes the modern political, communications, and scheduling strains on Congress that have created an opportunity for new types of investigations, and offers case studies of three quasi-legislative independent commissions – the Commission on Terrorist Attacks Upon the United States, the Commission on Wartime Contracting in Iraq and Afghanistan, and the Financial Crisis Inquiry Commission. Then, this Article scrutinizes these case studies and concludes that a quasi-legislative independent commission is most likely to be successful where it has a limited scope and investigative flexibility, features members seen as free from political pressures, uses discretion in compelling information, and ties its mission to larger legislative reform. Finally, this Article concludes by offering advice to practitioners on how to best represent clients before quasi-legislative independent commissions.","PeriodicalId":166493,"journal":{"name":"Legislation & Statutory Interpretation eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130902153","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
“It’s the end of work as we know it,” reports consulting firm Accenture in a paper about the “rise of the extended workforce.” (Gartside, Silverstone, Farley & Cantrell, Trends Reshaping the Future of HR: The Rise of the Extended Workforce, at 3 (Accenture 2013). The report predicts that, “[i]n the future, organizations’ competitive success will hinge on...workers who aren’t employees at all.” The legal nature of employment is changing and has been changing for quite some time; fewer and fewer workers are “employees.” It is not new or novel to recognize that, from a legal perspective, there are many benefits to employers who hire independent contractors rather than employees. There have long existed incentives for employers to characterize workers as independent. What is shifting, however, is the workers’ narrative about independence. At least for creative and highly skilled workers, the changing narrative is one of free agency: ditch the man and chart your own course, which writers and entrepreneurs Ryan Coonerty and Jeremy Neuner have dubbed the “naked economy.” (Coonerty & JNeuner, The Rise of the Naked Economy: How to Benefit from the Changing Workplace (Palgrave MacMillan 2013)).Why is this economy “naked”? While acknowledging vulnerability, the reference to nudity appears to emphasize freedom: “stripping work bare” to reinvent it with the essentials required for productivity and satisfaction. This frame of mind places high value on control and flexibility. It eschews the rigid 9-5 workday, with its commute and face time. It emphasizes work-life balance, changes in technology that allow for flexibility and the dream of charting one’s own destiny. All of these factors are coalescing to push people (at least, creative and highly skilled people) to choose independence.Independent work, however, has its drawbacks. One of the significant problems in the independent workforce is nonpayment of invoices. 40% of respondents to a Freelancers Union survey reported trouble collecting unpaid fees from clients. (Freelancers Union, Independent, Innovative, and Unprotected: How the Old Safety Net Is Failing America’s New Workforce (2010). Of those respondents, 83% reported getting paid late; 33% reported never getting paid; and 28% reported getting paid less than billed.This short paper addresses independent workers’ very specific and all-too-common difficulties in getting paid. It is written for a mixed audience; it is intended to be both practical and accessible. There is hope that it will further the academic conversation, but it is also written for attorneys, policymakers and independent workers. Part I defines the naked economy and tracks the rise in independent work. Part II discusses the problem of nonpayment. Parts III, IV and V, respectively, provide an overview of the contractual tools, legislative reforms and market responses that are evolving to minimize the risk of nonpayment. The paper concludes that technology and private enterprise are evolv
{"title":"Getting Paid in the Naked Economy","authors":"Meredith R. Miller","doi":"10.2139/SSRN.2495087","DOIUrl":"https://doi.org/10.2139/SSRN.2495087","url":null,"abstract":"“It’s the end of work as we know it,” reports consulting firm Accenture in a paper about the “rise of the extended workforce.” (Gartside, Silverstone, Farley & Cantrell, Trends Reshaping the Future of HR: The Rise of the Extended Workforce, at 3 (Accenture 2013). The report predicts that, “[i]n the future, organizations’ competitive success will hinge on...workers who aren’t employees at all.” The legal nature of employment is changing and has been changing for quite some time; fewer and fewer workers are “employees.” It is not new or novel to recognize that, from a legal perspective, there are many benefits to employers who hire independent contractors rather than employees. There have long existed incentives for employers to characterize workers as independent. What is shifting, however, is the workers’ narrative about independence. At least for creative and highly skilled workers, the changing narrative is one of free agency: ditch the man and chart your own course, which writers and entrepreneurs Ryan Coonerty and Jeremy Neuner have dubbed the “naked economy.” (Coonerty & JNeuner, The Rise of the Naked Economy: How to Benefit from the Changing Workplace (Palgrave MacMillan 2013)).Why is this economy “naked”? While acknowledging vulnerability, the reference to nudity appears to emphasize freedom: “stripping work bare” to reinvent it with the essentials required for productivity and satisfaction. This frame of mind places high value on control and flexibility. It eschews the rigid 9-5 workday, with its commute and face time. It emphasizes work-life balance, changes in technology that allow for flexibility and the dream of charting one’s own destiny. All of these factors are coalescing to push people (at least, creative and highly skilled people) to choose independence.Independent work, however, has its drawbacks. One of the significant problems in the independent workforce is nonpayment of invoices. 40% of respondents to a Freelancers Union survey reported trouble collecting unpaid fees from clients. (Freelancers Union, Independent, Innovative, and Unprotected: How the Old Safety Net Is Failing America’s New Workforce (2010). Of those respondents, 83% reported getting paid late; 33% reported never getting paid; and 28% reported getting paid less than billed.This short paper addresses independent workers’ very specific and all-too-common difficulties in getting paid. It is written for a mixed audience; it is intended to be both practical and accessible. There is hope that it will further the academic conversation, but it is also written for attorneys, policymakers and independent workers. Part I defines the naked economy and tracks the rise in independent work. Part II discusses the problem of nonpayment. Parts III, IV and V, respectively, provide an overview of the contractual tools, legislative reforms and market responses that are evolving to minimize the risk of nonpayment. The paper concludes that technology and private enterprise are evolv","PeriodicalId":166493,"journal":{"name":"Legislation & Statutory Interpretation eJournal","volume":"37 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121639989","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
There is a fierce ideological struggle between two warring camps: those who rally against expansive government and those who support it. Clearly, the correct balance must be struck between the extremes of legislative over-invasiveness and the frightening total absence of legal structure. This paper articulates a framework that allows for legislative parsimony — a way to scale back state law in a way that avoids lurching to unnecessary extremes. I assume the libertarian premise that law should strive to encroach as minimally as possible upon social order, yet I argue that we must do this in a highly selective fashion, employing a range of legislative techniques. I call this approach legislative minimalism. The strength of legislative minimalism is its pragmatic flexibility: different situations will allow for different degrees of minimalism. The paper creates a taxonomy of legislative strategies, outlining five distinct strategies. This taxonomy provides a conceptual foundation to help guide policymakers faced with the question of how best to legislate — or more accurately, how much to legislate.
{"title":"Restraining the Hand of Law: A Conceptual Framework to Shrink the Size of Law","authors":"Bryan H. Druzin","doi":"10.2139/ssrn.2499286","DOIUrl":"https://doi.org/10.2139/ssrn.2499286","url":null,"abstract":"There is a fierce ideological struggle between two warring camps: those who rally against expansive government and those who support it. Clearly, the correct balance must be struck between the extremes of legislative over-invasiveness and the frightening total absence of legal structure. This paper articulates a framework that allows for legislative parsimony — a way to scale back state law in a way that avoids lurching to unnecessary extremes. I assume the libertarian premise that law should strive to encroach as minimally as possible upon social order, yet I argue that we must do this in a highly selective fashion, employing a range of legislative techniques. I call this approach legislative minimalism. The strength of legislative minimalism is its pragmatic flexibility: different situations will allow for different degrees of minimalism. The paper creates a taxonomy of legislative strategies, outlining five distinct strategies. This taxonomy provides a conceptual foundation to help guide policymakers faced with the question of how best to legislate — or more accurately, how much to legislate.","PeriodicalId":166493,"journal":{"name":"Legislation & Statutory Interpretation eJournal","volume":"51 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131534746","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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