The IRS recently rescinded a longstanding rule that required certain nonprofits to disclose substantial donor names and addresses on the nonprofit annual information return. This was a mistake. Though the rule remains for charities and political organizations, the collection of this information non-publicly by the IRS is needed to enforce tax-exempt requirements and the tax law generally for social welfare organizations and business leagues. It serves both as a roadmap for audits and as a hindrance to improper transactions. It also is reasonable for the IRS to collect this information to support legal regimes ancillary to the tax law such as state nonprofit law and campaign finance. Tax law prohibits the distribution of earnings from a nonprofit to those who control the organization. Like officers and directors, substantial donors are classic suspects of those who might seek improper private benefits through their control of a nonprofit. But substantial donors, unlike officers and directors, are not public facing. Without substantial donor information, an IRS auditor has no reason to begin to question certain transactions and operations of the nonprofit that accrue to the benefit of a substantial donor that could potentially lead to modification of a claimed tax result. The Supreme Court recently found a similar requirement of the state of California to impose a burden on First Amendment free association rights, and furthermore found that the state failed to show the requirement was narrowly tailored to the governmental interest of protecting citizens from fraud on charity. The Court’s ruling calls into question the constitutionality of the IRS requirement too. However, the Court accepted that the governmental interest associated with tax law might be different from the case made by the California attorney general. This Article does not significantly engage with the question of the constitutionality of this IRS requirement but does suggest the important governmental interest involved. There are important governmental and democratic interests involved beyond the free association rights of substantial donors, namely that the tax, campaign finance and nonprofit law be enforced equally upon all and appear to be enforced equally. The importance of the ability of the government to collect the revenue is significant as well.
{"title":"Dark Money Darker? IRS Shutters Collection of Donor Data","authors":"Philip T. Hackney","doi":"10.5744/ftr.2021.1004","DOIUrl":"https://doi.org/10.5744/ftr.2021.1004","url":null,"abstract":"The IRS recently rescinded a longstanding rule that required certain nonprofits to disclose substantial donor names and addresses on the nonprofit annual information return. This was a mistake. Though the rule remains for charities and political organizations, the collection of this information non-publicly by the IRS is needed to enforce tax-exempt requirements and the tax law generally for social welfare organizations and business leagues. It serves both as a roadmap for audits and as a hindrance to improper transactions. It also is reasonable for the IRS to collect this information to support legal regimes ancillary to the tax law such as state nonprofit law and campaign finance. Tax law prohibits the distribution of earnings from a nonprofit to those who control the organization. Like officers and directors, substantial donors are classic suspects of those who might seek improper private benefits through their control of a nonprofit. But substantial donors, unlike officers and directors, are not public facing. Without substantial donor information, an IRS auditor has no reason to begin to question certain transactions and operations of the nonprofit that accrue to the benefit of a substantial donor that could potentially lead to modification of a claimed tax result. The Supreme Court recently found a similar requirement of the state of California to impose a burden on First Amendment free association rights, and furthermore found that the state failed to show the requirement was narrowly tailored to the governmental interest of protecting citizens from fraud on charity. The Court’s ruling calls into question the constitutionality of the IRS requirement too. However, the Court accepted that the governmental interest associated with tax law might be different from the case made by the California attorney general. This Article does not significantly engage with the question of the constitutionality of this IRS requirement but does suggest the important governmental interest involved. There are important governmental and democratic interests involved beyond the free association rights of substantial donors, namely that the tax, campaign finance and nonprofit law be enforced equally upon all and appear to be enforced equally. The importance of the ability of the government to collect the revenue is significant as well.","PeriodicalId":271965,"journal":{"name":"University of Pittsburgh School of Law Legal Studies Research Paper Series","volume":"11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-05-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116288689","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 securities law, investor protection means that an issuer of securities, here partnership interests for private equity, must register with the Securities and Exchange Commission (“SEC”) and be subject to disclosure, reporting, record-keeping compliance and examination programs. This Article argues that the Dodd-Frank Act has fulfilled part of its objective to protect private equity investors by forcing private equity managers to disclose information on their operations. Disclosure has provided greater transparency about how the business of private equity is conducted. The increased SEC scrutiny started in 2014 has uncovered unfair practices and violations of fiduciary duties that sophisticated investors could not detect on their own. Notwithstanding this improved transparency, the Dodd-Frank Act still falls short of imposing the main tool securities laws uses to protect investors: that is, full and fair disclosure. In other words, Dodd-Frank does not provide all the required protections that are important for investors to assess the quality of their investments and make informed decisions. This Article offers to expand transparency by additional public disclosure of investment returns, fees, and managers’ income.For other policy issues unrelated to the protection of investors, that is, jobs or tax, Title IV of the Dodd-Frank Act does not offer the appropriate setting. Applying or enacting legislation concerning tax, labor or bankruptcy laws can better curve the controversial practices of private equity firms.
{"title":"Protection of Private Equity Investors under the Dodd-Frank Act","authors":"Doris Toyou","doi":"10.5195/JLC.2019.159","DOIUrl":"https://doi.org/10.5195/JLC.2019.159","url":null,"abstract":"In securities law, investor protection means that an issuer of securities, here partnership interests for private equity, must register with the Securities and Exchange Commission (“SEC”) and be subject to disclosure, reporting, record-keeping compliance and examination programs. This Article argues that the Dodd-Frank Act has fulfilled part of its objective to protect private equity investors by forcing private equity managers to disclose information on their operations. Disclosure has provided greater transparency about how the business of private equity is conducted. The increased SEC scrutiny started in 2014 has uncovered unfair practices and violations of fiduciary duties that sophisticated investors could not detect on their own. Notwithstanding this improved transparency, the Dodd-Frank Act still falls short of imposing the main tool securities laws uses to protect investors: that is, full and fair disclosure. In other words, Dodd-Frank does not provide all the required protections that are important for investors to assess the quality of their investments and make informed decisions. This Article offers to expand transparency by additional public disclosure of investment returns, fees, and managers’ income.For other policy issues unrelated to the protection of investors, that is, jobs or tax, Title IV of the Dodd-Frank Act does not offer the appropriate setting. Applying or enacting legislation concerning tax, labor or bankruptcy laws can better curve the controversial practices of private equity firms.","PeriodicalId":271965,"journal":{"name":"University of Pittsburgh School of Law Legal Studies Research Paper Series","volume":"443 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-05-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116231083","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}
Pub Date : 2017-10-20DOI: 10.4337/9781785368349.00016
Jacqueline D. Lipton
This chapter examines the mass digitization of the publishing industry which traces its roots to around 2007 with the release of the first Kindle e-reader by Amazon. Because the publishing industry was a later entrant into the digital marketplace than some of the other content industries (for example, the music, movie and television industries), it has only more recently started to deal with issues relating to the appropriate scope of copyright protection in digital content and the application of key copyright exceptions such as fair use and first sale to digital initiatives such as the creation of online coursepacks for study and research purposes, digital fanfiction, and library lending of digital books. Caselaw has emerged over the last decade in the United States, the Court of Justice of the European Union, and a number of national courts in Europe about the application of copyright law and policy to new digital initiatives in publishing and downstream sale of eBooks. While few clear principles have emerged, at least none that are globally harmonized, the recent judicial determinations and associated debates provide useful food for thought for legislators concerned with future developments in publishing. It is important for legislators to watch and learn from these current disputes, so that appropriate legislation might be enacted if, and when, necessary in a given segment of the industry. In some ways the lack of global consensus as to the application of copyright law in a number of digital publishing scenarios is a benefit to the development of appropriate legal principles, as it provides an opportunity for a form of international arbitrage in which national legislatures and courts can learn from other countries’ experiences in emerging copyright areas.
{"title":"Mass Digitization in the eBook Market: Copyright Protections and Exceptions","authors":"Jacqueline D. Lipton","doi":"10.4337/9781785368349.00016","DOIUrl":"https://doi.org/10.4337/9781785368349.00016","url":null,"abstract":"This chapter examines the mass digitization of the publishing industry which traces its roots to around 2007 with the release of the first Kindle e-reader by Amazon. Because the publishing industry was a later entrant into the digital marketplace than some of the other content industries (for example, the music, movie and television industries), it has only more recently started to deal with issues relating to the appropriate scope of copyright protection in digital content and the application of key copyright exceptions such as fair use and first sale to digital initiatives such as the creation of online coursepacks for study and research purposes, digital fanfiction, and library lending of digital books. Caselaw has emerged over the last decade in the United States, the Court of Justice of the European Union, and a number of national courts in Europe about the application of copyright law and policy to new digital initiatives in publishing and downstream sale of eBooks. While few clear principles have emerged, at least none that are globally harmonized, the recent judicial determinations and associated debates provide useful food for thought for legislators concerned with future developments in publishing. It is important for legislators to watch and learn from these current disputes, so that appropriate legislation might be enacted if, and when, necessary in a given segment of the industry. In some ways the lack of global consensus as to the application of copyright law in a number of digital publishing scenarios is a benefit to the development of appropriate legal principles, as it provides an opportunity for a form of international arbitrage in which national legislatures and courts can learn from other countries’ experiences in emerging copyright areas.","PeriodicalId":271965,"journal":{"name":"University of Pittsburgh School of Law Legal Studies Research Paper Series","volume":"65 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-10-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132222347","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}
Pub Date : 2016-01-07DOI: 10.5195/TAXREVIEW.2015.41
Philip T. Hackney
Congress has traditionally utilized standards as a means of communicating charitable tax law in the Code. In the past fifteen years, however, Congress has increasingly turned to rules to stop fraud and abuse in the charitable sector. I review the rules versus standards debate to evaluate this trend. Are Congressional rules the best method for regulating the charitable sector? While the complex changing nature of charitable purpose would suggest standards are better, the inadequacy of IRS enforcement and the large number of unsophisticated charitable organizations both augur strongly in favor of rules. Congress, however, is not the ideal institution to implement rules for charitable purpose. The IRS is the better institution generally to institute rules there because of its informational advantage over Congress. Additionally, the IRS can implement rules in a more flexible rule format than can Congress. Still, Congress as a rulemaker makes sense in a few scenarios: (1) where it implements transparent procedural requirements; (2) where it regulates discrete behavior of charitable organization acts; and, (3) where it intends to remove a set of organizations from charitable status through simple rules.
{"title":"Charitable Organization Oversight: Rules v. Standards","authors":"Philip T. Hackney","doi":"10.5195/TAXREVIEW.2015.41","DOIUrl":"https://doi.org/10.5195/TAXREVIEW.2015.41","url":null,"abstract":"Congress has traditionally utilized standards as a means of communicating charitable tax law in the Code. In the past fifteen years, however, Congress has increasingly turned to rules to stop fraud and abuse in the charitable sector. I review the rules versus standards debate to evaluate this trend. Are Congressional rules the best method for regulating the charitable sector? While the complex changing nature of charitable purpose would suggest standards are better, the inadequacy of IRS enforcement and the large number of unsophisticated charitable organizations both augur strongly in favor of rules. Congress, however, is not the ideal institution to implement rules for charitable purpose. The IRS is the better institution generally to institute rules there because of its informational advantage over Congress. Additionally, the IRS can implement rules in a more flexible rule format than can Congress. Still, Congress as a rulemaker makes sense in a few scenarios: (1) where it implements transparent procedural requirements; (2) where it regulates discrete behavior of charitable organization acts; and, (3) where it intends to remove a set of organizations from charitable status through simple rules.","PeriodicalId":271965,"journal":{"name":"University of Pittsburgh School of Law Legal Studies Research Paper Series","volume":"33 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-01-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121414816","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}
“Knowledge commons” describes the institutionalized community governance of the sharing and, in some cases, creation, of information, science, knowledge, data, and other types of intellectual and cultural resources. It is the subject of enormous recent interest and enthusiasm with respect to policymaking about innovation, creative production, and intellectual property. Taking that enthusiasm as its starting point, Governing Knowledge Commons argues that policymaking should be based on evidence and a deeper understanding of what makes commons institutions work. It offers a systematic way to study knowledge commons, borrowing and building on Elinor Ostrom’s Nobel Prize-winning research on natural resource commons. It proposes a framework for studying knowledge commons that is adapted to the unique attributes of knowledge and information, describing the framework in detail and explaining how to put it into context both with respect to commons research and with respect to innovation and information policy. Eleven detailed case studies apply and discuss the framework exploring knowledge commons across a wide variety of scientific and cultural domains.
{"title":"Governing Knowledge Commons -- Introduction & Chapter 1","authors":"Brett M. Frischmann, M. J. Madison, K. Strandburg","doi":"10.17605/OSF.IO/AF3UD","DOIUrl":"https://doi.org/10.17605/OSF.IO/AF3UD","url":null,"abstract":"“Knowledge commons” describes the institutionalized community governance of the sharing and, in some cases, creation, of information, science, knowledge, data, and other types of intellectual and cultural resources. It is the subject of enormous recent interest and enthusiasm with respect to policymaking about innovation, creative production, and intellectual property. Taking that enthusiasm as its starting point, Governing Knowledge Commons argues that policymaking should be based on evidence and a deeper understanding of what makes commons institutions work. It offers a systematic way to study knowledge commons, borrowing and building on Elinor Ostrom’s Nobel Prize-winning research on natural resource commons. It proposes a framework for studying knowledge commons that is adapted to the unique attributes of knowledge and information, describing the framework in detail and explaining how to put it into context both with respect to commons research and with respect to innovation and information policy. Eleven detailed case studies apply and discuss the framework exploring knowledge commons across a wide variety of scientific and cultural domains.","PeriodicalId":271965,"journal":{"name":"University of Pittsburgh School of Law Legal Studies Research Paper Series","volume":"31 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123958162","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}
Against the background of the asymmetric mandates of Global Antitrust Institutions (GAIs), this paper explores the potential for juris-generative interactions in the form of legal transplants of antitrust rules and principles from the OECD, the UNCTAD, and the ICN to the WTO through the gateway of dispute settlement. Relying on the WTO panel report in Mexico-Telecoms as a case-study, this work highlights the uneven level of compliance with GAL due process and institutional performance standards by the donors and the recipient of such legal transplants and investigates the optimal conditions for juris-generative interactions between GAIs.
{"title":"The Role of GAL Standards in Juris-Generative Interactions between Global Antitrust Institutions in the Light of the Mexico-Telecoms Case","authors":"Amedeo Arena","doi":"10.2139/SSRN.2401274","DOIUrl":"https://doi.org/10.2139/SSRN.2401274","url":null,"abstract":"Against the background of the asymmetric mandates of Global Antitrust Institutions (GAIs), this paper explores the potential for juris-generative interactions in the form of legal transplants of antitrust rules and principles from the OECD, the UNCTAD, and the ICN to the WTO through the gateway of dispute settlement. Relying on the WTO panel report in Mexico-Telecoms as a case-study, this work highlights the uneven level of compliance with GAL due process and institutional performance standards by the donors and the recipient of such legal transplants and investigates the optimal conditions for juris-generative interactions between GAIs.","PeriodicalId":271965,"journal":{"name":"University of Pittsburgh School of Law Legal Studies Research Paper Series","volume":"8 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114356272","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}
Pub Date : 2011-06-06DOI: 10.4337/9780857934703.00013
M. J. Madison
Assessments of the relationship among law, innovation, and economic growth often begin with one or more propositions of law or law practice and predict how changes might affect innovation or business practice. This approach is problematic when applied to questions of regional economic development, because historic and contemporary local conditions vary considerably. This paper takes a different tack. It takes a snapshot of one recovering post-industrial economy, in Pittsburgh, Pennsylvania, USA. For most of the 20th century, Pittsburgh's steelmakers were leading examples worldwide of American economic prowess. Pittsburgh was so vibrant with industry that a late 19th century travel writer called Pittsburgh "hell with the lid taken off," and he meant that as a compliment. In the early 1980s, however, Pittsburgh's steel economy collapsed, a victim of changing worldwide demand for steel and the industry's inflexible commitment to a large-scale integrated production model. As the steel industry collapsed, the Pittsburgh region collapsed, too. Unemployment in some parts of the Pittsburgh region peaked at 20%. More than 100,000 manufacturing jobs disappeared. Tens of thousands of residents moved away annually. Over the last 30 years, Pittsburgh has slowly recovered, building a new economy that balances limited manufacturing with a broad range of high quality services. In 2009, President Barack Obama took note of the region's rebirth by selecting the city to host a summit of the Group of 20 (G-20) finance ministers. The paper describes the characteristics of Pittsburgh today and measures the state of its renewal. It considers the extent, if any, to which law and the legal system have contributed to Pittsburgh's modern success, and it identifies lessons that this Pittsburgh case study might offer for other recovering and transitioning post-industrial regions.
{"title":"Contrasts in Innovation: Pittsburgh Then and Now","authors":"M. J. Madison","doi":"10.4337/9780857934703.00013","DOIUrl":"https://doi.org/10.4337/9780857934703.00013","url":null,"abstract":"Assessments of the relationship among law, innovation, and economic growth often begin with one or more propositions of law or law practice and predict how changes might affect innovation or business practice. This approach is problematic when applied to questions of regional economic development, because historic and contemporary local conditions vary considerably. This paper takes a different tack. It takes a snapshot of one recovering post-industrial economy, in Pittsburgh, Pennsylvania, USA. For most of the 20th century, Pittsburgh's steelmakers were leading examples worldwide of American economic prowess. Pittsburgh was so vibrant with industry that a late 19th century travel writer called Pittsburgh \"hell with the lid taken off,\" and he meant that as a compliment. In the early 1980s, however, Pittsburgh's steel economy collapsed, a victim of changing worldwide demand for steel and the industry's inflexible commitment to a large-scale integrated production model. As the steel industry collapsed, the Pittsburgh region collapsed, too. Unemployment in some parts of the Pittsburgh region peaked at 20%. More than 100,000 manufacturing jobs disappeared. Tens of thousands of residents moved away annually. Over the last 30 years, Pittsburgh has slowly recovered, building a new economy that balances limited manufacturing with a broad range of high quality services. In 2009, President Barack Obama took note of the region's rebirth by selecting the city to host a summit of the Group of 20 (G-20) finance ministers. The paper describes the characteristics of Pittsburgh today and measures the state of its renewal. It considers the extent, if any, to which law and the legal system have contributed to Pittsburgh's modern success, and it identifies lessons that this Pittsburgh case study might offer for other recovering and transitioning post-industrial regions.","PeriodicalId":271965,"journal":{"name":"University of Pittsburgh School of Law Legal Studies Research Paper Series","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-06-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128903675","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}
While there has been much literature on the Iraqi constitution of both the scholarly and popular media variety, attention to contemporary Iraqi judicial decisions, and in particular those of the Iraqi Federal Supreme Court, has been far less pronounced. In fact, my own search has not led me to a single published law review article on the subject. There is some irony to this – it is, after all, rather difficult to address the concept of constitutionalism in any state without reference to constitutional praxis, and the judiciary is, at the very least, an integral participant in that praxis. I have sought to address this omission with my own review of Iraqi judicial practice over the past half decade. My thesis upon completing such a review is that Iraq’s judiciary is generally (though not entirely) independent of overweening executive influence, its rulings are generally (though not entirely) heeded within the political classes and the broader polity, and as such its emerging practice does not differ from contemporary scholarly accounts of the history of the United States Supreme Court, or, perhaps better stated, the differences are of degree rather than quality. This Article proceeds in three parts. The first part addresses the independence of the Iraqi judiciary from direct executive interference, and provides limitations on the thesis that the judiciary is able to work largely without threat of reprisal from the executive. The second part addresses the legitimacy of the Court’s decisionmaking and the broad (though by no means unlimited) extent to which its rulings are heeded by other political institutions and by the broader public. The third part acknowledges that which will be made clear in the first two sections – namely, that the Iraqi courts, particularly at the higher level, while being generally independent and legitimate, perceive themselves as constrained enough to proceed cautiously and carefully, anxious not to issue rulings that will be broadly rejected by the political classes, or enter the courts into divisive disputes that will only lead to a loss of the prestige of the judicial institution. However, far from being some sort of anomalous example of judicial failing, in fact, the judiciary is conducting itself precisely as any judiciary would, including that of the United States, at least according to contemporary scholarly accounts, and in particular that of Barry Friedman in his most recent work, The Will of the People.
{"title":"The Will of the (Iraqi) People","authors":"H. Hamoudi","doi":"10.5072/ULR.V2011I1.543","DOIUrl":"https://doi.org/10.5072/ULR.V2011I1.543","url":null,"abstract":"While there has been much literature on the Iraqi constitution of both the scholarly and popular media variety, attention to contemporary Iraqi judicial decisions, and in particular those of the Iraqi Federal Supreme Court, has been far less pronounced. In fact, my own search has not led me to a single published law review article on the subject. There is some irony to this – it is, after all, rather difficult to address the concept of constitutionalism in any state without reference to constitutional praxis, and the judiciary is, at the very least, an integral participant in that praxis. I have sought to address this omission with my own review of Iraqi judicial practice over the past half decade. My thesis upon completing such a review is that Iraq’s judiciary is generally (though not entirely) independent of overweening executive influence, its rulings are generally (though not entirely) heeded within the political classes and the broader polity, and as such its emerging practice does not differ from contemporary scholarly accounts of the history of the United States Supreme Court, or, perhaps better stated, the differences are of degree rather than quality. This Article proceeds in three parts. The first part addresses the independence of the Iraqi judiciary from direct executive interference, and provides limitations on the thesis that the judiciary is able to work largely without threat of reprisal from the executive. The second part addresses the legitimacy of the Court’s decisionmaking and the broad (though by no means unlimited) extent to which its rulings are heeded by other political institutions and by the broader public. The third part acknowledges that which will be made clear in the first two sections – namely, that the Iraqi courts, particularly at the higher level, while being generally independent and legitimate, perceive themselves as constrained enough to proceed cautiously and carefully, anxious not to issue rulings that will be broadly rejected by the political classes, or enter the courts into divisive disputes that will only lead to a loss of the prestige of the judicial institution. However, far from being some sort of anomalous example of judicial failing, in fact, the judiciary is conducting itself precisely as any judiciary would, including that of the United States, at least according to contemporary scholarly accounts, and in particular that of Barry Friedman in his most recent work, The Will of the People.","PeriodicalId":271965,"journal":{"name":"University of Pittsburgh School of Law Legal Studies Research Paper Series","volume":"42 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-10-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125562335","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}
7 Chicago Journal of International Law 605 (2007)Despite its explosive growth over the past several decades, Islamic finance continues to have trouble attracting large numbers of otherwise pious Muslims as potential investors. The underlying reason for this is that the means that the practice employs to circumvent some of the central Muslim bans relating to finance (most notably, the ban on interest) are entirely formal in their structure and are equivalent to conventional structures both legally and economically. However, the practice purports to serve functional ends; namely, through offering Muslims alternative means of finance that are intended to further Islamic ideals of fairness and social justice. This has resulted in schizophrenia within Islamic finance, with proponents and practitioners creating formalisms to comply with Shari'a while continuing to insist that Islamic finance has a functional purpose that cannot sensibly be ascribed to it given its current structure. Either Islamic finance needs to describe itself as nothing more or less than the mere conformity with doctrine in a manner that does not serve any functional purpose at all, or, given the interest of the Muslim community in social justice in economic affairs, the practice needs to reinvent itself, focusing less on mimicking conventional alternatives and more on achieving at least to some degree the ends of social justice and fairness it endlessly promotes.
{"title":"Jurisprudential Schizophrenia: On Form and Function in Islamic Finance","authors":"H. Hamoudi","doi":"10.31228/osf.io/aqrsy","DOIUrl":"https://doi.org/10.31228/osf.io/aqrsy","url":null,"abstract":"7 Chicago Journal of International Law 605 (2007)Despite its explosive growth over the past several decades, Islamic finance continues to have trouble attracting large numbers of otherwise pious Muslims as potential investors. The underlying reason for this is that the means that the practice employs to circumvent some of the central Muslim bans relating to finance (most notably, the ban on interest) are entirely formal in their structure and are equivalent to conventional structures both legally and economically. However, the practice purports to serve functional ends; namely, through offering Muslims alternative means of finance that are intended to further Islamic ideals of fairness and social justice. This has resulted in schizophrenia within Islamic finance, with proponents and practitioners creating formalisms to comply with Shari'a while continuing to insist that Islamic finance has a functional purpose that cannot sensibly be ascribed to it given its current structure. Either Islamic finance needs to describe itself as nothing more or less than the mere conformity with doctrine in a manner that does not serve any functional purpose at all, or, given the interest of the Muslim community in social justice in economic affairs, the practice needs to reinvent itself, focusing less on mimicking conventional alternatives and more on achieving at least to some degree the ends of social justice and fairness it endlessly promotes.","PeriodicalId":271965,"journal":{"name":"University of Pittsburgh School of Law Legal Studies Research Paper Series","volume":"26 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2007-10-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133493465","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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