Recent controversies have called attention to the potential significance of negative executive authority — the authority to limit or undo what Congress has done through nonenforcement or waiver. This symposium essay reflects in several ways on constitutional and rule-of-law debates that have emerged regarding such authority. First, it defends the relevance of constitutional principles to baseline understandings of nonenforcement authority. Second, it identifies a deep tension in the rule of law’s implications for discretionary enforcement. Third, it defends statutorily conferred law-cancellation authority against constitutional challenges and rule-of-law objections. Finally, it proposes presumptive limits on authority to condition statutory waivers.
{"title":"Seeking Baselines for Negative Authority: Constitutional and Rule-of-law Arguments Over Nonenforcement and Waiver","authors":"Zachary S. Price","doi":"10.1093/JLA/LAW005","DOIUrl":"https://doi.org/10.1093/JLA/LAW005","url":null,"abstract":"Recent controversies have called attention to the potential significance of negative executive authority — the authority to limit or undo what Congress has done through nonenforcement or waiver. This symposium essay reflects in several ways on constitutional and rule-of-law debates that have emerged regarding such authority. First, it defends the relevance of constitutional principles to baseline understandings of nonenforcement authority. Second, it identifies a deep tension in the rule of law’s implications for discretionary enforcement. Third, it defends statutorily conferred law-cancellation authority against constitutional challenges and rule-of-law objections. Finally, it proposes presumptive limits on authority to condition statutory waivers.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"16 1","pages":"235-276"},"PeriodicalIF":2.2,"publicationDate":"2016-05-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75283608","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
C. Robertson, D. Winkelman, Kelly Bergstrand, Darren Modzelewski
The Edmond J. Safra Center for Ethics at Harvard University provided funding for this research.
哈佛大学的Edmond J. Safra伦理中心为这项研究提供了资金。
{"title":"The Appearance and the Reality of Quid Pro Quo Corruption: An Empirical Investigation","authors":"C. Robertson, D. Winkelman, Kelly Bergstrand, Darren Modzelewski","doi":"10.1093/JLA/LAW006","DOIUrl":"https://doi.org/10.1093/JLA/LAW006","url":null,"abstract":"The Edmond J. Safra Center for Ethics at Harvard University provided funding for this research.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"37 1","pages":"375-438"},"PeriodicalIF":2.2,"publicationDate":"2016-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73040166","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
U.S. corporate criminal enforcement policy encourages prosecutors to enter into deferred and non-prosecution agreements (D/NPAs) that impose corporate reform mandates on firms with detected misconduct. This article concludes that the process governing prosecutors’ use of D/NPA mandates is inconsistent with the rule of law. The rule of law requires that individual executive branch actors not be given sufficient authority to restrict the rights of others to achieve personal aims, including idiosyncratic conceptions of the public interest. To satisfy the rule of law, modern governments granting discretion to executive branch actors constrain this authority by both limiting the scope of authority granted and requiring external oversight of decisions. Formal enforcement through pleas and formal agency rule-making employ both mechanisms. By contrast, prosecutors who use D/NPAs to create and impose new duties face few limitations on either the scope of their ex ante authority to intervene. They also face little oversight through judicial review. This broad grant of discretion to individual prosecutors’ offices is inconsistent with the rule of law.
{"title":"Prosecuting Beyond the Rule of Law: Corporate Mandates Imposed through Deferred Prosecution Agreements","authors":"Jennifer H. Arlen","doi":"10.1093/JLA/LAW007","DOIUrl":"https://doi.org/10.1093/JLA/LAW007","url":null,"abstract":"U.S. corporate criminal enforcement policy encourages prosecutors to enter into deferred and non-prosecution agreements (D/NPAs) that impose corporate reform mandates on firms with detected misconduct. This article concludes that the process governing prosecutors’ use of D/NPA mandates is inconsistent with the rule of law. The rule of law requires that individual executive branch actors not be given sufficient authority to restrict the rights of others to achieve personal aims, including idiosyncratic conceptions of the public interest. To satisfy the rule of law, modern governments granting discretion to executive branch actors constrain this authority by both limiting the scope of authority granted and requiring external oversight of decisions. Formal enforcement through pleas and formal agency rule-making employ both mechanisms. By contrast, prosecutors who use D/NPAs to create and impose new duties face few limitations on either the scope of their ex ante authority to intervene. They also face little oversight through judicial review. This broad grant of discretion to individual prosecutors’ offices is inconsistent with the rule of law.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"55 1","pages":"191-234"},"PeriodicalIF":2.2,"publicationDate":"2016-04-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77999566","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
What difference do starting points make? The question is important for decision making in general and for law in particular, including the interpretation of statutes. Judges must begin the interpretive process somewhere. Today, Supreme Court opinions sometimes promote the idea of starting with the text of the statute at issue. But what does this mean, in practice, and does it matter to decisions? “Start with the text” could be a signal of allegiance to an interpretive school and an indication that some interpretive tools are more important than or even lexically superior to others. At present, however, the statement delivers neither of those messages well. Instead, we might think about the statement as a rule for sequencing sources. Although the mere sequence in which information is considered does not have any clear logical significance for case results, the idea of starting with statutory text can become almost unnervingly significant — and without adding lexical priority.Decades of studies show that the order in which information is presented can influence decisions, apart from what formal logic dictates. But the direction of order effects can be counterintuitive and sensitive to the decision environment, which suggests complications for a “start with the text” sequencing rule. Depending on several factors, the first item of information will matter most, the last item will matter most, or there will be no order effect. Furthermore, even if order effects are predicted accurately, some psychological mechanisms that produce order effects are normatively problematic for judicial use. Finally, an effective sequencing rule requires an implementation strategy with a foundation far away from standard theorizing about interpretive method. Foregrounding implementation issues and the real world of interpretive architecture suggests that, if judges want to harness order effects, they probably should turn to the most important sources last, not first.
{"title":"Starting with the Text — On Sequencing Effects in Statutory Interpretation and Beyond","authors":"Adam M. Samaha","doi":"10.1093/JLA/LAW004","DOIUrl":"https://doi.org/10.1093/JLA/LAW004","url":null,"abstract":"What difference do starting points make? The question is important for decision making in general and for law in particular, including the interpretation of statutes. Judges must begin the interpretive process somewhere. Today, Supreme Court opinions sometimes promote the idea of starting with the text of the statute at issue. But what does this mean, in practice, and does it matter to decisions? “Start with the text” could be a signal of allegiance to an interpretive school and an indication that some interpretive tools are more important than or even lexically superior to others. At present, however, the statement delivers neither of those messages well. Instead, we might think about the statement as a rule for sequencing sources. Although the mere sequence in which information is considered does not have any clear logical significance for case results, the idea of starting with statutory text can become almost unnervingly significant — and without adding lexical priority.Decades of studies show that the order in which information is presented can influence decisions, apart from what formal logic dictates. But the direction of order effects can be counterintuitive and sensitive to the decision environment, which suggests complications for a “start with the text” sequencing rule. Depending on several factors, the first item of information will matter most, the last item will matter most, or there will be no order effect. Furthermore, even if order effects are predicted accurately, some psychological mechanisms that produce order effects are normatively problematic for judicial use. Finally, an effective sequencing rule requires an implementation strategy with a foundation far away from standard theorizing about interpretive method. Foregrounding implementation issues and the real world of interpretive architecture suggests that, if judges want to harness order effects, they probably should turn to the most important sources last, not first.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"29 1","pages":"439-491"},"PeriodicalIF":2.2,"publicationDate":"2016-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74865121","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Verifiable proxies for social capital potentially provide an empirically tractable way to identify environments where social norms both constrain behavior and substitute for judicial enforcement. Using regression and factor analysis with Japanese prefecture-level data, I explore several aspects of this possibility. First, I find that people in prefectures with high levels of social capital more readily comply with a range of low-level legal mandates. Second, reflecting the fact that social norms need not point toward government-approved ends, taxpayers in high social-capital prefectures (particularly in the agricultural sector) are more -- not less -- likely to evade taxes. Third, conditional on levels of economic welfare, I find that: (a) firms in prefectures with low levels of social capital are more likely to default on their contracts; (b) residents in low social-capital prefectures are probably (the results are ambiguous) more likely to litigate; (c) creditors of distressed debtors in low social-capital prefectures are more likely to apply in court for enforcement orders, and (d) distressed debtors in low social-capital prefectures are more likely to file in court for bankruptcy protection.
{"title":"Social Capital and the Formal Legal System: Evidence from Prefecture-Level Data in Japan","authors":"John M. Olin, M. Ramseyer","doi":"10.1093/JLA/LAV008","DOIUrl":"https://doi.org/10.1093/JLA/LAV008","url":null,"abstract":"Verifiable proxies for social capital potentially provide an empirically tractable way to identify environments where social norms both constrain behavior and substitute for judicial enforcement. Using regression and factor analysis with Japanese prefecture-level data, I explore several aspects of this possibility. First, I find that people in prefectures with high levels of social capital more readily comply with a range of low-level legal mandates. Second, reflecting the fact that social norms need not point toward government-approved ends, taxpayers in high social-capital prefectures (particularly in the agricultural sector) are more -- not less -- likely to evade taxes. Third, conditional on levels of economic welfare, I find that: (a) firms in prefectures with low levels of social capital are more likely to default on their contracts; (b) residents in low social-capital prefectures are probably (the results are ambiguous) more likely to litigate; (c) creditors of distressed debtors in low social-capital prefectures are more likely to apply in court for enforcement orders, and (d) distressed debtors in low social-capital prefectures are more likely to file in court for bankruptcy protection.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"1991 1","pages":"421-466"},"PeriodicalIF":2.2,"publicationDate":"2015-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82336192","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
We discuss the commitment mechanisms that underpin social orderings. We categorize commitments in relationships along a hierarchy that runs from the most extra-legal to the most legally intensive devices. Commitment devices are chosen in light of their social, legal and technological contexts. Changes to these contexts therefore change the social order and, in extremis, can cause significant social dislocation. We use a new new dataset of underwriting syndicates between 1933 and 2008 to argue that financial market have experienced such a dislocation. We discuss the policy implications of this dislocation with specific reference to cases in securitization and M&A markets.
{"title":"Trust, Reputation, and Law: the Evolution of Commitment in Investment Banking","authors":"A. Morrison, W. Wilhelm","doi":"10.1093/JLA/LAV007","DOIUrl":"https://doi.org/10.1093/JLA/LAV007","url":null,"abstract":"We discuss the commitment mechanisms that underpin social orderings. We categorize commitments in relationships along a hierarchy that runs from the most extra-legal to the most legally intensive devices. Commitment devices are chosen in light of their social, legal and technological contexts. Changes to these contexts therefore change the social order and, in extremis, can cause significant social dislocation. We use a new new dataset of underwriting syndicates between 1933 and 2008 to argue that financial market have experienced such a dislocation. We discuss the policy implications of this dislocation with specific reference to cases in securitization and M&A markets.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"209 1","pages":"363-420"},"PeriodicalIF":2.2,"publicationDate":"2015-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77759905","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The master agreements that nominally govern the transactions between mid-western Original Equipment Manufacturers and their suppliers are not, for the most part, designed to create legal obligations. Rather, they create a space in which private order can flourish, much like the role played by firm boundaries in the Coase-Williamson theory of the firm. This Article explores how sophisticated transactors in this market have combined governance techniques associated with arm’s-length contracting, intrafirm hierarchy, and trust-based relational contracting to create relationships that are long-term, highly cooperative, and characterized by significant relationship-specific investment. It suggests that these transactors have been able to accomplish these outcomes with only minimal reliance on the legal system, in large part because they operate in a market of highly interconnected firms — a network that itself functions as a contract governance mechanism. It then explores the implications of these contract structures and the availability of network governance for firms’ make-or-buy decisions and the likelihood of innovation.
{"title":"Beyond Relational Contracts: Social Capital and Network Governance in Procurement Contracts","authors":"Lisa E. Bernstein","doi":"10.1093/JLA/LAW001","DOIUrl":"https://doi.org/10.1093/JLA/LAW001","url":null,"abstract":"The master agreements that nominally govern the transactions between mid-western Original Equipment Manufacturers and their suppliers are not, for the most part, designed to create legal obligations. Rather, they create a space in which private order can flourish, much like the role played by firm boundaries in the Coase-Williamson theory of the firm. This Article explores how sophisticated transactors in this market have combined governance techniques associated with arm’s-length contracting, intrafirm hierarchy, and trust-based relational contracting to create relationships that are long-term, highly cooperative, and characterized by significant relationship-specific investment. It suggests that these transactors have been able to accomplish these outcomes with only minimal reliance on the legal system, in large part because they operate in a market of highly interconnected firms — a network that itself functions as a contract governance mechanism. It then explores the implications of these contract structures and the availability of network governance for firms’ make-or-buy decisions and the likelihood of innovation.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"25 1","pages":"561-621"},"PeriodicalIF":2.2,"publicationDate":"2015-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87020006","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
A trade association is a millennium-old organizational form that has existed on all continents. It is a private, formal, nonprofit organization designed to promote the common interests of its members, even if these members are competitors on product (or research) markets. While it is straightforward to assume that an association creates net benefits for its members – why would they join, otherwise? – it is unclear whether, or under which circumstances, the existence of an association has positive net effects for the rest of the economy. In “Trade Associations, Lobbying, and Endogenous Institutions,” Maria Larrain and Jens Prufer study this question by means of a game-theoretic model. The answer is, of course, “it depends.” But on what does it depend? And why?
{"title":"Trade Associations, Lobbying, and Endogenous Institutions","authors":"Maria Larrain, J. Prüfer","doi":"10.1093/JLA/LAV009","DOIUrl":"https://doi.org/10.1093/JLA/LAV009","url":null,"abstract":"A trade association is a millennium-old organizational form that has existed on all continents. It is a private, formal, nonprofit organization designed to promote the common interests of its members, even if these members are competitors on product (or research) markets. While it is straightforward to assume that an association creates net benefits for its members – why would they join, otherwise? – it is unclear whether, or under which circumstances, the existence of an association has positive net effects for the rest of the economy. In “Trade Associations, Lobbying, and Endogenous Institutions,” Maria Larrain and Jens Prufer study this question by means of a game-theoretic model. The answer is, of course, “it depends.” But on what does it depend? And why?","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"399 1","pages":"467-516"},"PeriodicalIF":2.2,"publicationDate":"2015-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76916306","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The story of a medieval law merchant has a strong hold on scholars interested in private ordering. Despite numerous historical works demonstrating the falsity of the myth, it continues to be discussed regularly in scholarship as if it were an accurate portrayal of the past. This article tests the law merchant story against evidence about the mechanisms of medieval trade. It suggests that medieval commerce had little space for a specialized law, and that merchants had little need for it because of both the well-developed trading infrastructure and the actions of local governments to ensure the protection of legal rights.
{"title":"The Medieval Law Merchant: The Tyranny of a Construct","authors":"Emily E. Kadens","doi":"10.1093/JLA/LAV004","DOIUrl":"https://doi.org/10.1093/JLA/LAV004","url":null,"abstract":"The story of a medieval law merchant has a strong hold on scholars interested in private ordering. Despite numerous historical works demonstrating the falsity of the myth, it continues to be discussed regularly in scholarship as if it were an accurate portrayal of the past. This article tests the law merchant story against evidence about the mechanisms of medieval trade. It suggests that medieval commerce had little space for a specialized law, and that merchants had little need for it because of both the well-developed trading infrastructure and the actions of local governments to ensure the protection of legal rights.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"26 1","pages":"251-289"},"PeriodicalIF":2.2,"publicationDate":"2015-06-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87219332","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The functionality doctrine in trademark law bars protection for some, but not all, source-identifying product features — so-called trade dress — that contribute to a product’s functional performance. Despite the doctrine’s lengthy history, its critical role in promoting intellectual property policies, and the considerable attention devoted to it in recent decades, courts and commentators still disagree about what functionality means, the reasons why functional marks should not be protected, and how far the functionality bar should extend. This confusion is due largely to a lack of clarity and rigor at the normative level. This article seeks to remedy the deficiency. It traces the history of the functionality doctrine, critically analyzes its policy foundations, and outlines an analytical approach for designing optimal functionality rules.
{"title":"Trademark Functionality Reexamined","authors":"R. Bone","doi":"10.1093/JLA/LAV002","DOIUrl":"https://doi.org/10.1093/JLA/LAV002","url":null,"abstract":"The functionality doctrine in trademark law bars protection for some, but not all, source-identifying product features — so-called trade dress — that contribute to a product’s functional performance. Despite the doctrine’s lengthy history, its critical role in promoting intellectual property policies, and the considerable attention devoted to it in recent decades, courts and commentators still disagree about what functionality means, the reasons why functional marks should not be protected, and how far the functionality bar should extend. This confusion is due largely to a lack of clarity and rigor at the normative level. This article seeks to remedy the deficiency. It traces the history of the functionality doctrine, critically analyzes its policy foundations, and outlines an analytical approach for designing optimal functionality rules.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"14 1","pages":"183-246"},"PeriodicalIF":2.2,"publicationDate":"2015-05-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73308233","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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