Legal Theory Blog

Reilly on Auditing Global Supply Chains & Freedom of Association

Amanda Reilly (Victoria University of Wellington - School of Accounting and Commercial Law) has posted We Should Talk: Dialogic Accounting and Freedom of Association (Legalities 1.1 (2021): 13–18).  Here is the abstract:

A range of laws aimed at protecting workers’ rights in global supply chains such as the United Kingdom’s Modern Slavery Act 2015 and the Australian Modern Slavery Act 2008 rely on reporting and auditing mechanisms. These initiatives have been criticised on various grounds with one criticism being that these tools are not suitable for enhancing or protecting process rights such as freedom of association.

Dialogic accounting theory envisions accounting as an open-ended and ongoing process of dialogue which facilitates democratic participation and learning both in the process of generating the accounts and in the uses that the accounts are put to. This intervention considers what insights may be drawn from dialogic accounting theory to strengthen and improve reporting regulation around freedom of association. It suggests that dialogic accounting theory guides us to think carefully about the design of reporting requirements including a sensitivity to what is reported, how it is reported, how it is reported, who participates in the reporting process and who the reporting is directed to.

It concludes by suggesting that an evolving dialogue between law and accounting about forms of accountability and the ways in which and law and accounting can jointly contribute to improved working lives and empowerment is worth further exploration.

Kaplan on a Descriptive Account of Table Manners & the Normativity of Social Institutions

Jeffrey Kaplan (University of North Carolina (UNC) at Greensboro; University of California, Berkeley) has posted Attitude and Social Rules, or Why It's Okay to Slurp Your Soup (Philosophers' Imprint 2021) on SSRN.  Here is the abstract:

Many of the most important social institutions—e.g., law and language—are thought to be normative in some sense. And philosophers have been puzzled by how this normativity can be explained in terms of the social, descriptive states of affairs that presumably constitute them. This paper attempts to solve this sort of puzzle by considering a simpler and less contentious normative social practice: table manners. Once we are clear on the exact sense in which a practice is normative, we see that some practices can be normative in an interesting and non-trivial sense, but also explicable with merely descriptive resources. In addition to arguing that it is possible to explain normative practices with descriptive resources, this paper presents and defends just such an explanation—an account of the nature of table manners that appeals only to descriptive states of affairs.

Guggenheim on Fulton v. City of Philadelphia

Martin Guggenheim (New York University School of Law) has posted Fulton v. City of Philadelphia: How No One Paid Any Attention to Children's Rights (Family Court Rev. 2021;1–9) on SSRN.  Here is the abstract:

As part of the special issue on foster care and Fulton v. City of Philadelphia (2021), this essay provides a brief history of the role of race and religion in the foster care system. It critiques the case for failing to address the foster care system itself, and argues that Fulton essentially endorses a system that may make it impossible for state officials to ensure that the children will thrive in the homes they are obligated to find for them.

Vogt on Freedom, Crime, & Punishment

David Chelsom Vogt (University of Bergen) has posted The Natural Meaning of Crime and Punishment: Denying and Affirming Freedom (Criminal Law, Philosophy (2021)) on SSRN.  Here is the abstract:

The article discusses the link between freedom, crime and punishment. According to some theorists, crime does not only cause a person to have less freedom; it constitutes, in and of itself, a breach of the freedom of others. Punishment does not only cause people to have more freedom, for instance by preventing crimes; it constitutes, in and of itself, respect for mutual freedom. If the latter claims are true, crime and punishment must have certain meanings that make them denials/affirma- tions of freedom irrespective of their consequences. My aim is to show that such an immanent connection between crime/punishment and freedom exists. I do so by explicating the “natural meaning” of crime and punishment. This way of addressing the topic is inspired by Jean Hampton’s use of H. P. Grice’s concept of natural meaning. Expanding on Hampton’s theory, drawing on both H. L. A. Hart and Kant, I argue that crime has the natural meaning of denying freedom, and punishment has the natural meaning of affirming freedom. The paper presents an ideal theory, not a justification for actual criminal justice practices, which in most countries unfortunately fail to instantiate the value of mutual freedom.

Cordis, Hsu, & Zhang on Freedom of Information & Industrial Pollution

Adriana S. Cordis (Winthrop University - College of Business Administration), Po-Hsuan Hsu (National Tsing Hua University - Department of Quantitative Finance), & Jin Zhang (Monash University) have posted Freedom of Information and Industrial Pollution on SSRN.  Here is the abstract:

The transparency of the information environment in which US firms operate, as measured by the strength of state-level freedom of information (FOI) laws, is negatively associated with industrial pollution. Not only do the emissions of firms decrease as FOI laws become stronger, the overall level of emissions in a state is negatively related to the total number of FOI requests received by the state’s environmental department or agency. Notably, the negative association between the strength of FOI laws and pollution emissions is concentrated in states with lower pollution abatement costs, more efficient governments, more lenient environmental policies, and higher preexisting levels of public corruption. These findings suggest that strengthening public access to information on governmental activities, especially those related to the regulation and monitoring of industrial pollution, mitigates polluting behavior.

Welton on Energy Law, Racism, & Inequality

Shelley Welton (University of South Carolina School of Law) has posted The Bounds of Energy Law (Boston College Law Review, Vol. 62, No. 7, 2021) on SSRN.  Here is the abstract:

U.S. energy law was born of fossil fuels. Consequently, our energy law has long centered on the material and legal puzzles that bringing fossil fuels to market presents. Eliminating these same carbon-producing energy sources, however, has emerged as perhaps the most pressing material transformation needed in the twenty-first century—and one that energy law scholarship has rightfully em-braced. Yet in our admirable quest to aid in this transformation, energy law scholars are largely writing into the field bequeathed to us, proposing changes that tweak, but do not fundamentally challenge, last century’s tools for managing the extraction, transport, and delivery of fossil fuels and electrons. The result, as this Article illustrates, is that we are coming up short in achieving the scale and scope of transformation necessary for planetary stability. The aim of this Article is to push U.S. energy law scholars to expand the bounds of the field in three directions. First, to achieve durable policies that transform the energy system, this Article argues that we must orient more attention to institutions, politics, and power—rather than just substantive solutions—to revive the best of the early-twentieth-century Progressive scholarly tradition. Second, as conversations around the Green New Deal and the relationship of Black Lives Matter to the energy system highlight, there is both a political and moral imperative to shed our disciplinary obsession with economic efficiency and integrate considerations of overlapping societal priorities—most pointedly, racism and inequality—into energy law and policy. Finally, we should expand our idea of what counts as “energy law” beyond the delivery of fossil fuels and electrons, to include a broader and deeper analysis of how energy is embedded and consumed within the economy and society. That means tracing and regulating the flow of energy beyond the point of delivery by examining means of reducing or eliminating fossil fuel consumption across aviation, shipping, automobility, housing, and agriculture. It also means turning our attention to how the law can help build modes of life that better align with a no-carbon future—a new line of inquiry that the Article calls “structural energy conservation.”

Edwards on Shareholder Wealth Maximization as a Schelling Point

Martin Edwards (Belmont University College of Law) has posted Shareholder Wealth Maximization: A Schelling Point (St. John's Law Review , Vol. 94, No. 3, 2021) on SSRN.  Here is the abstract:

Legal scholars have long debated the nature, meaning, efficacy, and even the very existence of the shareholder wealth maximization norm. Those who model the corporation in terms of its economic efficiency tend to defend it, while those skeptical of it have made a formidable case that corporate governance might be better if managers and directors focused more on worker wealth, environmental sustainability, and various other matters of social importance. If nothing else, the shareholder wealth maximization norm has been a persistent feature of corporate law and governance. This Article proposes that one reason for this persistence is that shareholder wealth maximization is a Schelling point. A Schelling point is a contextually intuitive way for bargainers to coordinate simply by both acting consistently how each would expect the other to act.

A Schelling point emerges as the solution in bargains where there is more than one value-creating outcome. Confronted with these multiple equilibria, the bargainers often choose the one that is the most contextually unique or intuitive, even if that solution is not optimal. Shareholder wealth maximization is the Schelling point for public investment in corporations because it is a simple and intuitive way to construct the bargain between the managers and directors on one side and the shareholders on the other. When the corporate bargain consists of the shareholders exchanging their capital for nothing more than the surplus value of the corporation, the most intuitive solution to the bargain is a tacit agreement to maximize that surplus value. Like any Schelling point, shareholder wealth maximization may not always be optimal, but its reliably useful.

Kovvali on Essential Businesses & Shareholder Value

Aneil Kovvali (University of Chicago Law School) has posted Essential Businesses and Shareholder Value (University of Chicago Legal Forum, Vol. 2021) on SSRN.  Here is the abstract:

The COVID-19 crisis has demonstrated that Americans rely on certain for-profit corporations to supply the essentials of everyday life. Even though the government had assumed extraordinary responsibilities for the wellbeing of its citizens for the duration of the crisis, for-profit companies were deemed so essential to social functioning that workers were sent to keep them running despite the risk of infection with a deadly disease. If our society’s capacity to meet basic needs in a crisis is entirely dependent on the capacity of private corporations, it is necessary to critically evaluate the performance of the directors and officers who lead these companies, and to ask whether their pre-crisis decisions were made within an appropriate framework of incentives. Recent experience suggests good reasons to question whether our existing system of corporate governance has proven equal to the outsized role of key corporations. Various corporations were not prepared to operate safely at appropriate levels during a crisis, creating enormous economic and public health risks. These issues were at least plausibly caused by an over-emphasis on short-term profit maximization within a specific pre-crisis operating environment, and a failure to address the undiversifiable risks associated with a potential disruption. While external regulation and coordination by the government is a critical part of the solution to this problem, new corporate governance tools could play a valuable role in ensuring that directors and officers recognize and carry out a duty to build resilient organizations. This Article discusses one possible tool: a focused liability regime that would hold the directors and officers of corporations running essential businesses liable if they fail to prepare for crises.

Smith on Caregiving & Racial Justice

Charisa Kiyô Smith (CUNY School of Law) has posted From Empathy Gap to Reparations: An Analysis of Caregiving, Criminalization & Family Empowerment (Fordham Law Review, Vol. 90, 2022) on SSRN.  Here is the abstract:

America’s legacy of violent settler colonialism and racial capitalism reveals a misunderstood and neglected civil rights concern: the forced separation of families of color, and unwarranted state intrusion upon caregiving through criminalization and surveillance. The War on Drugs, the Opioid Crisis, and most recently the COVID-19 pandemic, are a few historical examples demonstrating the precariousness of our nation’s collective empathy well towards caregivers and our tattered social safety net. In fact, these instances illuminate what this paper coins an “empathy gap” in perception when the general public, policymakers, and the mainstream media view similarly situated families with different identities. Ironically, the COVID-19 pandemic presents both a tragic crisis and an unparalleled opportunity to reimagine the status quo for communities of color and society at large. Families and children deserve comprehensive transformation, resourced through abolition of carceral protection systems, restorative approaches, and true reparations for slavery.

This paper reconciles fragmented perspectives on family integrity and civil rights, applying empirical research about disparate treatment while engaging the framework of vulnerability theory. Ultimately, a paradigm shift is needed. Public health and socioeconomic wellbeing necessitate protection for marginalized families and innovation beyond the limits of law. Recognition of inherent vulnerability in the human condition is pivotal to achieving family empowerment, economic justice, and racial justice.

Pergami on the EU & Statute of Limitations Reform

Federico Pergami (Bocconi University - Department of Law) has posted Next Generation EU and the reform of statutes of limitation: old and new problems regarding the reasonable length of proceedings (KOINONIA 45, Napoli 2021) on SSRN.  Here is the abstract:

The essay, starting from the recent Cartabia reform on criminal trial, examines the late antique legislation of the Theodosian Code, with specific reference to the constitutions related to the reasonable lenght of proceedings, especially those of second degree, to be concluded within peremptory terms, in order to guarantee the celebration of an aequum iudicium. The importance of the terms for the length of proceedings is also confirmed by Justinian’s reforms.