Doriane Lambelet Coleman, Kenneth A Dodge, Sarah Keeton Campbell
{"title":"WHERE AND HOW TO DRAW THE LINE BETWEEN REASONABLE CORPORAL PUNISHMENT AND ABUSE.","authors":"Doriane Lambelet Coleman, Kenneth A Dodge, Sarah Keeton Campbell","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":" ","pages":"107-166"},"PeriodicalIF":0.0,"publicationDate":"2010-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3805039/pdf/nihms491470.pdf","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"40265280","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"OA","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"MORE HARM THAN GOOD: A SUMMARY OF SCIENTIFIC RESEARCH ON THE INTENDED AND UNINTENDED EFFECTS OF CORPORAL PUNISHMENT ON CHILDREN.","authors":"Elizabeth T Gershoff","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"73 2","pages":"31-56"},"PeriodicalIF":0.0,"publicationDate":"2010-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8386132/pdf/nihms-1709675.pdf","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"39355343","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"OA","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This paper focuses on the special difficulties of resolving collective disputes, specifically among states, that result from past mischief. Past events are fixed, casting a permanent shadow. So how can collectivities cope with the “dead weight” of history and address past-oriented grievances? In considering this question, I introduce the notion of a state’s temporal boundary, and argue that changes in this boundary, analogous to the more familiar changes in territorial borders, can lift the shadow of the past and relieve past-oriented grievances. I then connect this conceptual framework to the distinction between history and memory as two different modalities of relating to the past. I maintain that a proper understanding of a state’s relationship to the past, and in particular the possibility of changes in a state’s temporal boundaries, offer a way to retain historical knowledge of past wrongs without the rancor and acrimony that mark this knowledge when it assumes the form of collective memory.
{"title":"Skirmishes on the Temporal Boundaries of States","authors":"Meir Dan-Cohen","doi":"10.2139/SSRN.1512911","DOIUrl":"https://doi.org/10.2139/SSRN.1512911","url":null,"abstract":"This paper focuses on the special difficulties of resolving collective disputes, specifically among states, that result from past mischief. Past events are fixed, casting a permanent shadow. So how can collectivities cope with the “dead weight” of history and address past-oriented grievances? In considering this question, I introduce the notion of a state’s temporal boundary, and argue that changes in this boundary, analogous to the more familiar changes in territorial borders, can lift the shadow of the past and relieve past-oriented grievances. I then connect this conceptual framework to the distinction between history and memory as two different modalities of relating to the past. I maintain that a proper understanding of a state’s relationship to the past, and in particular the possibility of changes in a state’s temporal boundaries, offer a way to retain historical knowledge of past wrongs without the rancor and acrimony that mark this knowledge when it assumes the form of collective memory.","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"10 1","pages":"95-114"},"PeriodicalIF":0.0,"publicationDate":"2009-11-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75011199","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 federal income tax did not become a mass tax until World War II. Although some form of mass federal taxation was imperative for the financing of the war, a mass income tax was not inevitable. But for the determined opposition of the Roosevelt administration, Congress would almost certainly have enacted a federal retail sales tax during the war - perhaps in addition to the conversion of the income tax to a mass tax, but perhaps as the only form of mass taxation aimed at paying for the war. This article describes the wartime debates among proponents of different methods of federal mass taxation - conversion of the income tax to a mass tax, enactment of a federal retail sales tax, or both. Following that description, the article considers the continuing impact of the wartime choice of the income tax as the only instrument of mass taxation. The article concludes that the use of the mass income tax - rather than the combination of an elite income tax and a mass retail sales tax (or value-added tax) - has made a significant difference in several areas, including: the distribution of the benefits of postwar tax cuts and the burdens of postwar tax increases; public perceptions of the nature of the relationship between taxpayers and the federal government; the proliferation of tax subsidies targeted at particular categories of nonbusiness expenditures, ranging from long-term care to hybrid cars; income support for low-wage workers with dependent children; and federal policy toward homeownership.
{"title":"The Federal Retail Sales Tax that Wasn’t: An Actual History and an Alternate History","authors":"L. Zelenak","doi":"10.2139/SSRN.1487631","DOIUrl":"https://doi.org/10.2139/SSRN.1487631","url":null,"abstract":"The federal income tax did not become a mass tax until World War II. Although some form of mass federal taxation was imperative for the financing of the war, a mass income tax was not inevitable. But for the determined opposition of the Roosevelt administration, Congress would almost certainly have enacted a federal retail sales tax during the war - perhaps in addition to the conversion of the income tax to a mass tax, but perhaps as the only form of mass taxation aimed at paying for the war. This article describes the wartime debates among proponents of different methods of federal mass taxation - conversion of the income tax to a mass tax, enactment of a federal retail sales tax, or both. Following that description, the article considers the continuing impact of the wartime choice of the income tax as the only instrument of mass taxation. The article concludes that the use of the mass income tax - rather than the combination of an elite income tax and a mass retail sales tax (or value-added tax) - has made a significant difference in several areas, including: the distribution of the benefits of postwar tax cuts and the burdens of postwar tax increases; public perceptions of the nature of the relationship between taxpayers and the federal government; the proliferation of tax subsidies targeted at particular categories of nonbusiness expenditures, ranging from long-term care to hybrid cars; income support for low-wage workers with dependent children; and federal policy toward homeownership.","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"40 1","pages":"149-205"},"PeriodicalIF":0.0,"publicationDate":"2009-10-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76701994","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 : 2009-04-01DOI: 10.1093/ACPROF:OSO/9780195340525.001.0001
D. Kaye
This article examines the current concerns about whether DNA databases may be used for actions other than to apprehend criminals, such as genetic research, in particular, searching for a "crime gene". Part II considers the perspective that these databases may be useful for research. The information within a DNA sample consists of a limited number of DNA base-pair variations, which are important to identification, but not necessarily to genetic research. However, while it may be difficult to conduct genetic research, it is not impossible. Part III examines state and federal database legislation. There are examples of three states' statutes and how they are falsely portrayed or exaggerated as allowing DNA databases to be used for genetic research. Part IV assesses some arguments with regard to allowing this research, including lack of consent from "donors", and the issue of whether or not to save the DNA samples once they have been used for identification.
{"title":"Behavioral Genetics Research and Criminal DNA Databanks","authors":"D. Kaye","doi":"10.1093/ACPROF:OSO/9780195340525.001.0001","DOIUrl":"https://doi.org/10.1093/ACPROF:OSO/9780195340525.001.0001","url":null,"abstract":"This article examines the current concerns about whether DNA databases may be used for actions other than to apprehend criminals, such as genetic research, in particular, searching for a \"crime gene\". Part II considers the perspective that these databases may be useful for research. The information within a DNA sample consists of a limited number of DNA base-pair variations, which are important to identification, but not necessarily to genetic research. However, while it may be difficult to conduct genetic research, it is not impossible. Part III examines state and federal database legislation. There are examples of three states' statutes and how they are falsely portrayed or exaggerated as allowing DNA databases to be used for genetic research. Part IV assesses some arguments with regard to allowing this research, including lack of consent from \"donors\", and the issue of whether or not to save the DNA samples once they have been used for identification.","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"1 1","pages":"259-300"},"PeriodicalIF":0.0,"publicationDate":"2009-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90289860","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 : 2009-03-22DOI: 10.4324/9780203144473-11
Valérie Rosoux, Thomas Brudholm
Brudholm and Rosoux question the ethics of having religious and political leaders call on individual victims to forgive wrongdoing as an aid to group-conflict resolution. Even though a group might strongly desire political stability and peace, these goals should not be obtained at the expense of the needs of the victim. They argue that even when the group strongly desires reconciliation, reconciliation does not necessarily require forgiveness. They also consider several actual examples of resistance with particular concentration on the reflections of two genocide survivors, namely Jean Amery and Esther Mujawayo.
{"title":"The unforgiving. Reflections on the resistance to forgiveness after atrocity","authors":"Valérie Rosoux, Thomas Brudholm","doi":"10.4324/9780203144473-11","DOIUrl":"https://doi.org/10.4324/9780203144473-11","url":null,"abstract":"Brudholm and Rosoux question the ethics of having religious and political leaders call on individual victims to forgive wrongdoing as an aid to group-conflict resolution. Even though a group might strongly desire political stability and peace, these goals should not be obtained at the expense of the needs of the victim. They argue that even when the group strongly desires reconciliation, reconciliation does not necessarily require forgiveness. They also consider several actual examples of resistance with particular concentration on the reflections of two genocide survivors, namely Jean Amery and Esther Mujawayo.","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"38 1","pages":"33-50"},"PeriodicalIF":0.0,"publicationDate":"2009-03-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78134939","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}
I INTRODUCTION Four years ago, as I was sitting at my desk in my overcrowded office, I received an odd e-mail. "Dear Professor," it began, I am writing to introduce you to Round Table Group [RTG], and to notify you of a specific, short-term consulting opportunity which may be of interest. Our attorney client is seeking an historian, highly credentialed, and at a prestigious university, to perform some historical research and instruct a lay jury about what was known about a particular occupational hazard (lead paint contamination) between 1950 and 1980. (1) The letter went on to explain how the historian sought "need not be a subject matter expert" but only need be a "good communicator" who could "easily communicate a story to a lay jury." (2) The e-mail continued in some detail, telling me how the process would work: If I were interested, I could send in my resume, a brief explanation of my expertise, and a statement of my consulting fee. After consulting with their industry client, I would be set up on a conference call to "determine if there is mutual interest in going forward." (3) The note continued by informing me about the consulting group: it was a consortium of "several thousand professors" in "management, law, medicine, science, computer science, education, engineering, economics, and other disciplines who make themselves available ... to law firms and companies who are clients of Round Table Group." (4) Historians, it appeared, were a new addition to their stable of experts. What was ironic, if that's the right word, was that RTG was searching for an expert to testify on behalf of companies in a lead-paint trial, and at that very moment I was preparing to testify in a major lead-paint trial on behalf of the State of Rhode Island. (5) I, with Gerald Markowitz, had written a book on the lead and vinyl industries (6) based on documents we had uncovered. The documents, an affidavit we had written, and the book had all become part of a landmark case in which Rhode Island's Attorney General, along with the support of the plaintiffs' law firm, Motley Rice, were suing the lead-pigment manufacturers to get them to remove lead paint from hundreds of thousands of buildings in the state. It appeared that the lead industry was searching for someone to testify against me. Clearly, this recruitment letter was part of a larger phenomenon. In recent years historians have been brought into legal cases in unprecedented numbers. (7) As the courts have tried to adjudicate responsibility for environmental and occupational diseases, history has played an increasingly central role in decisions that affect the cases themselves and in social policy regarding risk. In suits over tobacco-related diseases, asbestosis, radiation, and other toxic substances, more historians of technology and science, social history, and public health are being sought to provide testimony aimed at assessing responsibility for damages that have arisen years--sometimes decades--after ex
{"title":"Trials and tribulations : what happens when historians enter the courtroom","authors":"D. Rosner","doi":"10.7916/D8GB28TN","DOIUrl":"https://doi.org/10.7916/D8GB28TN","url":null,"abstract":"I INTRODUCTION Four years ago, as I was sitting at my desk in my overcrowded office, I received an odd e-mail. \"Dear Professor,\" it began, I am writing to introduce you to Round Table Group [RTG], and to notify you of a specific, short-term consulting opportunity which may be of interest. Our attorney client is seeking an historian, highly credentialed, and at a prestigious university, to perform some historical research and instruct a lay jury about what was known about a particular occupational hazard (lead paint contamination) between 1950 and 1980. (1) The letter went on to explain how the historian sought \"need not be a subject matter expert\" but only need be a \"good communicator\" who could \"easily communicate a story to a lay jury.\" (2) The e-mail continued in some detail, telling me how the process would work: If I were interested, I could send in my resume, a brief explanation of my expertise, and a statement of my consulting fee. After consulting with their industry client, I would be set up on a conference call to \"determine if there is mutual interest in going forward.\" (3) The note continued by informing me about the consulting group: it was a consortium of \"several thousand professors\" in \"management, law, medicine, science, computer science, education, engineering, economics, and other disciplines who make themselves available ... to law firms and companies who are clients of Round Table Group.\" (4) Historians, it appeared, were a new addition to their stable of experts. What was ironic, if that's the right word, was that RTG was searching for an expert to testify on behalf of companies in a lead-paint trial, and at that very moment I was preparing to testify in a major lead-paint trial on behalf of the State of Rhode Island. (5) I, with Gerald Markowitz, had written a book on the lead and vinyl industries (6) based on documents we had uncovered. The documents, an affidavit we had written, and the book had all become part of a landmark case in which Rhode Island's Attorney General, along with the support of the plaintiffs' law firm, Motley Rice, were suing the lead-pigment manufacturers to get them to remove lead paint from hundreds of thousands of buildings in the state. It appeared that the lead industry was searching for someone to testify against me. Clearly, this recruitment letter was part of a larger phenomenon. In recent years historians have been brought into legal cases in unprecedented numbers. (7) As the courts have tried to adjudicate responsibility for environmental and occupational diseases, history has played an increasingly central role in decisions that affect the cases themselves and in social policy regarding risk. In suits over tobacco-related diseases, asbestosis, radiation, and other toxic substances, more historians of technology and science, social history, and public health are being sought to provide testimony aimed at assessing responsibility for damages that have arisen years--sometimes decades--after ex","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"175 1","pages":"137-158"},"PeriodicalIF":0.0,"publicationDate":"2009-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82965615","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 essay examines the changing social and political meaning of surrogacy contracts over the twenty years since this issue first attracted public attention in the context of the Baby M case in the 1980s. In the protracted course of the Baby M litigation, surrogacy was effectively framed as illegitimate commodification - baby selling and the exploitation of women. This framing can be attributed to a moral panic generated by the media, politicians and a coalition of interest groups opposing surrogacy - primarily feminists and religious conservatives. The framing of surrogacy as commodification had far reaching effects on legal regulation. In the post-Baby M period, lawmakers in many states moved to prohibit or severely restrict surrogacy arrangements. In recent years, however, the framing of surrogacy as commodification has been replaced to a large extent by a more benign characterization which emphasizes the useful service provided by surrogates to childless couples. Further, over the past decade, regulators increasingly have focused on the goal of reducing uncertainty and providing procedures to efficiently establish the parental status of intended parents.This essay seeks to explain these changes. Several factors have been important: First, hostility to surrogacy has declined because the moral panic has dissipated as many of the predicted harms have not been realized. Further, advances in in vitro fertilization (IVF) have expanded the use of gestational surrogacy, which is less readily framed as commodification and thus, more palatable than traditional surrogacy. Finally, the interest group dynamic has changed: Women's groups have withdrawn, plausibly because the kinds of arguments made against surrogacy increasingly were adopted by anti-abortion advocates. These conditions have contributed to a political climate in which lawmakers have adopted a pragmatic approach, regulating with a goal of minimizing the social cost of surrogacy.
{"title":"Surrogacy and the Politics of Commodification","authors":"Elizabeth S. Scott","doi":"10.7916/D88K78SN","DOIUrl":"https://doi.org/10.7916/D88K78SN","url":null,"abstract":"This essay examines the changing social and political meaning of surrogacy contracts over the twenty years since this issue first attracted public attention in the context of the Baby M case in the 1980s. In the protracted course of the Baby M litigation, surrogacy was effectively framed as illegitimate commodification - baby selling and the exploitation of women. This framing can be attributed to a moral panic generated by the media, politicians and a coalition of interest groups opposing surrogacy - primarily feminists and religious conservatives. The framing of surrogacy as commodification had far reaching effects on legal regulation. In the post-Baby M period, lawmakers in many states moved to prohibit or severely restrict surrogacy arrangements. In recent years, however, the framing of surrogacy as commodification has been replaced to a large extent by a more benign characterization which emphasizes the useful service provided by surrogates to childless couples. Further, over the past decade, regulators increasingly have focused on the goal of reducing uncertainty and providing procedures to efficiently establish the parental status of intended parents.This essay seeks to explain these changes. Several factors have been important: First, hostility to surrogacy has declined because the moral panic has dissipated as many of the predicted harms have not been realized. Further, advances in in vitro fertilization (IVF) have expanded the use of gestational surrogacy, which is less readily framed as commodification and thus, more palatable than traditional surrogacy. Finally, the interest group dynamic has changed: Women's groups have withdrawn, plausibly because the kinds of arguments made against surrogacy increasingly were adopted by anti-abortion advocates. These conditions have contributed to a political climate in which lawmakers have adopted a pragmatic approach, regulating with a goal of minimizing the social cost of surrogacy.","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"1 1","pages":"109-146"},"PeriodicalIF":0.0,"publicationDate":"2008-10-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89264544","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}
Marc Galanter's article, 'Justice in Many Rooms' (1981) was prescient in recognizing that nonstate law was not necessarily kinder and gentler than state law. While many writing in the 1970s and 80s celebrated nonstate law as more egalitarian and less coercive than state law, Galanter held back. Post-1980s critiques of the cultural defense, particularly by Asian American feminist lawyers, have also contributed to a shift in the scholarly perception of nonstate law. In the spirit of Galanter's piece, the cultural defense debate should be read not just as a discussion about multicultural tolerance, but also as an integral part of the legal pluralism literature.
马克·加兰特(Marc galante)的文章《许多房间里的正义》(Justice in Many Rooms, 1981)很有先见之明，他认识到非州法律不一定比州法律更仁慈、更温和。在20世纪70年代和80年代，许多著作称赞非州法律比州法律更平等，强制性更少，但加兰特却退缩了。上世纪80年代后对文化辩护的批评，尤其是亚裔美国女权主义律师的批评，也促成了学术界对非州法观念的转变。本着加兰特文章的精神，文化防卫辩论不应仅仅被视为对多元文化宽容的讨论，还应被视为法律多元主义文学的一个组成部分。
{"title":"Justice in Many Rooms Since Galanter: De-Romanticizing Legal Pluralism Through the Cultural Defense","authors":"M. Sharafi","doi":"10.2139/SSRN.1464900","DOIUrl":"https://doi.org/10.2139/SSRN.1464900","url":null,"abstract":"Marc Galanter's article, 'Justice in Many Rooms' (1981) was prescient in recognizing that nonstate law was not necessarily kinder and gentler than state law. While many writing in the 1970s and 80s celebrated nonstate law as more egalitarian and less coercive than state law, Galanter held back. Post-1980s critiques of the cultural defense, particularly by Asian American feminist lawyers, have also contributed to a shift in the scholarly perception of nonstate law. In the spirit of Galanter's piece, the cultural defense debate should be read not just as a discussion about multicultural tolerance, but also as an integral part of the legal pluralism literature.","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"2 1","pages":"139-146"},"PeriodicalIF":0.0,"publicationDate":"2008-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89874986","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}
"Odious debt" is more of a literature rather than a doctrine. One can find numerous arguments dating back decades arguing that new regimes should be entitled to relief from "odious debts." The actual cases of relief, however, are few. Countries with obligations that could easily be classified as odious debt eschew reliance on the doctrine. The recent interest in the odious debt doctrine was precipitated by the ouster of Saddam Hussein. The new government of Iraq was able to pare down its debt without resting on the odious debt doctrine. Indeed, this resolution may portend that discussions of odious debt will recede from policy circles. There is a lesson here that should not be missed. Odious debt is a politically motivated concept. By tying debt relief to the character of the old regime, the doctrine seeks to achieve desired political results in two ways. While a disfavored regime is in place, it attempts to erode that regime by constricting available funds. After the regime falls, it encourages certain political outcomes by offering financial relief to acceptable regimes. What is too often overlooked is that odious debt is not unique on this score. All sovereign debt relief is political. Turkey is not treated as Honduras. The literature on sovereign debt restructuring exhibits unease with this situation. One can view the recent spate of proposed Sovereign Debt Restructuring Mechanisms as attempts to lessen the political nature of the process in much the way that American corporate reorganization law removes political considerations from restructuring activities. Rather than ignoring the tension between politics and law here, future work needs to embrace it. An optimal sovereign debt restructuring regime may be one that provides a minimum of relief available to all countries, but allows room for countries to use political levers to extract additional relief.
{"title":"Sovereign Debt Restructuring, Odious Debt, and the Politics of Debt Relief","authors":"R. K. Rasmussen","doi":"10.2139/SSRN.984002","DOIUrl":"https://doi.org/10.2139/SSRN.984002","url":null,"abstract":"\"Odious debt\" is more of a literature rather than a doctrine. One can find numerous arguments dating back decades arguing that new regimes should be entitled to relief from \"odious debts.\" The actual cases of relief, however, are few. Countries with obligations that could easily be classified as odious debt eschew reliance on the doctrine. The recent interest in the odious debt doctrine was precipitated by the ouster of Saddam Hussein. The new government of Iraq was able to pare down its debt without resting on the odious debt doctrine. Indeed, this resolution may portend that discussions of odious debt will recede from policy circles. There is a lesson here that should not be missed. Odious debt is a politically motivated concept. By tying debt relief to the character of the old regime, the doctrine seeks to achieve desired political results in two ways. While a disfavored regime is in place, it attempts to erode that regime by constricting available funds. After the regime falls, it encourages certain political outcomes by offering financial relief to acceptable regimes. What is too often overlooked is that odious debt is not unique on this score. All sovereign debt relief is political. Turkey is not treated as Honduras. The literature on sovereign debt restructuring exhibits unease with this situation. One can view the recent spate of proposed Sovereign Debt Restructuring Mechanisms as attempts to lessen the political nature of the process in much the way that American corporate reorganization law removes political considerations from restructuring activities. Rather than ignoring the tension between politics and law here, future work needs to embrace it. An optimal sovereign debt restructuring regime may be one that provides a minimum of relief available to all countries, but allows room for countries to use political levers to extract additional relief.","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"2001 1","pages":"249-262"},"PeriodicalIF":0.0,"publicationDate":"2007-09-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88346443","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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