The Faculty Lounge

Laplante on Just Repair

I've been talking a lot of late about the resurgence of literature on reparations.  And next week I hope to have a working draft of a paper on North Carolina's eugenics program and the legislature's compensation statute that I'm writing with Elizabeth Troutman.  One of the best developoments has been the literature that looks pretty seriously at designing a reparations program.  Lisa Laplante's new article, "Just Repair" is a prime example of this literature, which tries to assess what reparations might actually look like.  Here is Laplante's abstract:

“Just Repair” offers, for the first time, a theory of administrative reparation programs for redressing atrocities. Under this new theory, a government could satisfy its international obligation to guarantee just repair for victims who suffered a violation of their fundamental rights if it adopts a plural approach to designing its reparation policy. The Article responds to the challenges that governments face when trying to repair the harm suffered by hundreds, and sometimes thousands, of victims of political violence, repression and armed conflict. Governments often opt for an administrative solution when it is not feasible for every victim to use civil suits to litigate their claims. These administrative regimes often draw upon the concept of reparative justice, adopting a “legalistic” approach that calculates damages and awards lump sums or annuities. These payments technically fulfill the international obligation to protect the recognized right to reparation enjoyed by all victims of human rights violations. Yet recent scholarship questions whether administrative programs respond adequately and appropriately to the needs of victims, especially when governments implement reparation programming without consulting victims and thus fail to meet the victims’ expectations and demands. This misaligned policy results in victim dissatisfaction with, and even rejection of, reparation programs. Yet, in exposing this problem, few scholars offer a theoretical framework for a broader analysis of why this policy failure occurs. This Article responds by suggesting that the rift between theory and practice arises in part due to the lack of a coherent theoretical framework to explain the justice aims of reparations that can not only guide the planning and implementation of reparation programs but also third-party evaluations of these projects. Additionally, there is a still minimal international law guidance of what constitutes an effective, adequate and appropriate reparation program. Thus this Article presents a model of plural justice called the ‘justice continuum of repair’ that draws from classic legal and political theories to describe the overarching justice aims of reparations in transitional justice settings. This account better accommodates the multilayered justice aims held by victims, especially in light of the great diversity of human rights violations they suffer in addition to the variance in demographic characteristics like gender, class, age, location, among other factors. Their ‘postionality’ will influence what victims perceive to be necessary to feel repaired. This Article proposes that a government should adopt a participatory approach to planning and implementing their reparation programs to better accommodate and manage the multiple justice aims and expectations of victims, and thus help to enhance the effectiveness and legitimacy of a national reparation policy. Moreover, this framework will contribute to the development of evolving international standards for assuring fair and just reparation programs. Ultimately, a pluralist theory offers a more coherent understanding of the justice aims of reparation programs while still promoting the universalistic concept of the right of reparations.

Foreign Corrupt Practices Act

Readers with an interest in the FCPA may wish to add a just-published book to their professional library:  The Foreign Corrupt Practices Act in a New Era, written by Southern Illinois law professor Mike Koehler.  You can find details on the book here. 

Sharia Law in the North Carolina Courts

Last summer the North Carolina legislature passed a law banning the use of Sharia law in North Carolina courts.  The statute is an odd one .  It does not mention Sharia law, only foreign law.  But the law's supporters had Sharia law in mind.  The statute -- maybe in some kind of odd resonance with Shelley v. Kraemer -- prohibits the enforcement of contracts that infringe fundamental constitutional rights.  This is a way of allowing courts to review private agreements regarding divorce and custody (I'm guessing mostly pre-nuptual agreements) if they refer to Sharia law [or other foreign law] as a way of resolving a dispute.  It has been codified in the North Carolina General Statutes in Chapter 1.  Its provisions include:

§ 1-87.13. Public policy

In recognition that the United States Constitution and the Constitution of North Carolina constitute the supreme law of this State, the General Assembly hereby declares it to be the public policy of this State to protect its citizens from the application of foreign law that would result in the violation of a fundamental constitutional right of a natural person. The public policies expressed in this section shall apply only to actual or foreseeable violations of a fundamental constitutional right resulting from the application of the foreign law. (2013-416, s. 1.) 

§ 1-87.14. Nonapplication of foreign law that would violate fundamental constitutional rights.

A court, administrative agency, arbitrator, mediator, or other entity or person acting under
the authority of State law shall not apply a foreign law in any legal proceeding involving, or recognize a foreign judgment involving, a claim for absolute divorce, divorce from bed and board, child custody, child support, alimony, or equitable distribution if doing so would iolate a fundamental constitutional right of one or more natural persons who are parties to the proceeding.  (2013-416, s. 1.)

§ 1-87.15. Interpretation of contracts providing for choice of foreign law.

(a) In the interpretation or enforcement by a court, administrative agency, arbitrator, mediator, or other entity or person acting under the authority of State law of any contract or other agreement that provides for the choice of a foreign law togovern its interpretation or the resolution of any claim or dispute, the court or administrative agency shall preserve the fundamental constitutional rights of natural persons who are parties to the contract or other agreement.

(b) If enforcement of any provision in a contract or other agreement for the choice of  foreign law would result in a violation of a fundamental constitutional right of one or more of the natural persons who are parties to the contract or other agreement,the agreement or contract shall be modified or amended to the extent necessary to preserve the fundamental constitutional rights of the natural persons. (2013-416, s. 1.)

§ 1-87.16. Interpretation of contracts providing for choice of foreign venue or forum. 

If the enforcement of any provision in a contract or other agreement providing for a choice of a foreign venue or forum would result in a violation of a fundamentalconstitutional right of one or more of the natural persons who are parties to the contract or other agreement, that provision shall be modified or amended to the extent necessary to preserve the fundamental constitutional rights of the natural persons. (2013-416, s. 1.)

Because I am always looking to incorporate North Carolina legislation and cases into my courses, I think that I probably ought to pay some attention to this statute.  I mean, if we're banning the use of Sharia law here in North Carolina, surely it's being used with some frequency, no?  And I thought that I'd crowd-source a couple of issues related to this.  First, does anyone have any recent North Carolina cases involving Sharia law that I should be teaching?  Or North Carolina separation and custody agreements that I could use to illustrate how Sharia law is appearing in North Carolina?  Does this come up in some way in wills or trusts?  I'm not sure -- I don't know as the statute would protect beneficiaries under a will or trust that in some way uses Sharia law to determine eligibility, though maybe a beneficiary might try something along those lines....

Also, I'm planning on a field trip up to Hillsborough to look for instances where lawyers in the Orange County Superior Court invoked Sharia law.  I'll let you know how that goes.  But perhaps Orange County isn't the best place to look for this?  Do our North Carolina readers have any suggestions on the counties where Sharia law has been invoked most frequently?  Perhaps I should think about Alamance, Granveille, or Halifax Counties? Or maybe, because of this statue, I need to look in Virgina counties.  Would Lunenburg County be a reasonable place to look for this?  Suggestions most appreciated because as I say I want my property -- and especially trusts and estates -- classes to be up-to-date.

The illustration is of the antebellum Orange County Courthouse in Hillsborough.

Update: As Greg and Brian both pointed out, this was an April Fool's day post, designed to poke some fun at the North Carolina legislature.  But there is serious scholarship discussing similar legislation in other states.  John Parry of Lewis and Clark wrote "International Law in State Courts: Sovereignty, Resistance, Contagion, and Inevitability" about Oklahoma's anti-Sharia law statute.  Lumen Mulligan of the University of Kansas published an analysis of a similar Kansas statute in 5 Kansas Code of Civil Procedure Annotated (2013 supp.).

Sloss on 19th Century Public Law Litigation in the Supreme Court

When I have some more time I want to talk a lot about David Sloss' "Polymorphous Public Law Litigation: The Forgotten History of Nineteenth Century Public Law Litigation."  Cribbing now from the abstract:

Recent debates about popular constitutionalism and judicial supremacy have focused on the question of who interprets the Constitution. This article reframes the debate by asking what legal sources courts apply to protect individual rights from government infringement. Throughout the nineteenth century, federal courts applied a mix of international law, statutes and common law to protect fundamental rights and restrain government action. This article uncovers the forgotten history of nineteenth century public law litigation.

Professors Post and Siegel have advocated “policentric constitutional interpretation,” wherein the Supreme Court shares authority for constitutional interpretation with other actors. By analogy, this article introduces the concept of “polymorphous public law litigation.” Under the polymorphous model, instead of fixating on constitutional law as the dominant public law discourse, courts apply international law, statutes, and common law — and occasionally constitutional law — to decide public law controversies. The article demonstrates that nineteenth century federal courts applied a polymorphous model of public law litigation.

During the twentieth century, the polymorphous model was supplanted by a constitutionalized model of public law litigation, wherein courts rely primarily on constitutional law to decide public law cases. The process of constitutionalization exacerbated the tension between judicial review and popular sovereignty. When the Supreme Court applies constitutional law to decide a case, the Court does not merely decide the case; it also creates or modifies a legal rule that is not subject to revision by legislative majorities. In contrast, when the Court applies other types of law, Congress or state legislatures retain the power to modify the controlling legal rule. Hence, revival of a polymorphous model would help mitigate the tension between judicial review and popular sovereignty.

While I don't use fancy words like polymorphous, I agree that Sloss is exactly right in portraying the diverse sources that the Supreme Court looked to in deciding public law questions.  This is an important quantitative exploration of the ways that antebellum Americans brought a lot of sources to bear on key issues, such as the relationship between state and federal power, particularly as it related to slavery.  In a world with a relatively small number of sources, antebellum Americans perhaps unsurprisingly turned to treatises on international law as well as treatises on political philosophy, history, and economics.  The diversity of sources for the Supreme Court correlates with the diversity of sources that politicians (often lawyers) used in public addresses and on the floor of Congress.  This testifies again to the importance of constitutional ideas in public debate.

If I could add one other more precise comment here -- one of the reasons that I think the Taney Court (and southerners more generally) used international law arguments so frequently is that the analogy worked well for southern states; they liked the idea that other states (perhaps stronger, northern ones) could not impose their anti-slavery rules on southern states.  The equality dignity of sovereigns was useful for southerners who wanted their states to be as free as possible from control by northern states.  (My co-author Stacey Gahagan talks about this some, as I recall, in her work on Vattel.)  (I feel this in particular about figure 3, which shows a dramatic decrease in citations to international law after 1864 -- when Taney dies.)  More as I have a chance to dig into this in the detail this important article obviously warrants.

Davies on Why EU Legal History Matters

American University history professor Bill Davies talks about applied legal history in his article "Why EU Legal History Matters."  This is part of the American University International Law Review's symposium on "EU Legal Histories."  Cribbing a little from Davies' essay, which talks about the papers in the symposium:

[Michelle Egan's Toward a New History in European Law: New Wine in Old Bottles?] highlights a particularly important set of issues that historians must address if their findings are to find a foothold in the work of other disciplines. Foremost among these is the need for the new historical studies to “embrace bigger causal questions of theoretical and historical interest such as the relationship of law to contemporary democracy, the rights and conceptions of citizenship, the relationship of law to market capitalism, and the issues of internationalism, sovereignty, and legal pluralism.” Hunkering down into the silos of specialized, case- or period-specific studies, as has been the case in much of the New History scholarship to date, precludes the possibility of writing a history of European law as part of a broader “administrative, regulatory, and judicial realm” with a greater relevance for the large number of scholars who understand law in this way. ...

If making the New History relevant and useful to our political science and legal scholar colleagues comes potentially at the cost of undermining the hoped-for objectivity and inherent curiosity in the narrative, is this a price worth paying? How can we write a history of EU law that retains the features of “pure” history, yet at the same time produce narratives that are applicable and able to respond to the questions of fundamental importance raised by scholars like Egan, Pollack, and Bignami? Perhaps there is then a strong need for the New Historians to self-reflect a little more and engage with the theoretical assumptions in their own field—legal history—than necessarily being driven by concerns from outside the discipline?

Read the rest of Davies' article here and the entire symposium here.

Putting It On Our Children to Fix the Eastern Pacific Garbage Patch?

I was visiting Sydney Sea Life Aquarium recently and, in the children’s activity area, noticed signs urging kids to become plastic warriors by pledging to reduce their families’ use of plastic packaging in order to protect the ocean. I’m sure I've seen similar signs in aquariums and museums near me, but this time it struck me. Are we really putting the responsibility on our kids to curb the nightmare of plastics pollution in our oceans? And they’re supposed to do this by advocating to their parents kid by kid to use less plastic packaging until some small impact is made? Suddenly, the world seemed upside down.

You may have heard of the congregation of plastic particles and plastic debris in the oceans, which concentrates especially in areas called gyres, most notably in the Eastern Pacific Garbage Patch, which is located midway between Hawaii and California. Size estimates of the area vary, but some reports note that it is twice the size of Texas, while others peg it as much bigger, even nearly the size of Africa.   The problem is not only that these plastic garbage patches are impossible or nearly impossible to clean up, but, more importantly, the plastics kill and otherwise harm numerous species of marine life, from sea turtles to albatrosses to plankton.   See, e.g., National Geographic Eduction, "Encylcopedic Entry:  Great Pacific Garbage Patch"; Alan Weisman, "Polymers Are Forever," Orion Magazine(May/June 2007).  And not only do the plastics themselves harm the animals, for example, by blocking the digestive tracks of birds and turtles, but the plastics also concentrate poisons like PCBs, thus introducing large amounts of such poisons into the bodies of the animals that ingest them.   To make matters worse, such plastics take at least centuries to decompose, especially in the ocean where the process is slowed.  See, e.g., Grant A. Harse, "Plastic, The Great Pacific Garbage Patch, and International Misfires at a Cure," 29 UCLA J. Envtl. L. & Pol'y 331, 335 (2011).

Meanwhile, it appears that the United States' and other countries' attempts to address this problem are extremely incremental.  There are statutes and treaties aimed at stopping ocean dumping, but these laws do nothing to address the fact that a 80% of marine debris is estimated to come from land-based sources.    Id. at 332, 335.

It has seemed quite clear to me since I first read the Orion article referenced above that what we really need are stringent controls on the use of plastics for packaging and other purposes.  However, although I may have missed it, I haven't heard of any comprehensive movement in that direction.  I applaud the efforts of local governments, states, and countries that have decided to require recycling of plastic bags, to ban them, or to ban the use of Styrafoam food containers, but these efforts alone are not going to halt the large-scale contamination of our oceans.  And although, like most parents, I think my four year-old is capable of great things, it's not fair to put the burden of fixing this problem on our children and future generations.  Our generation and our parents' generation created it, and we need to fix it (or--if that is not possible--at least significantly rein it in).

By the way, the best thing at the Sydney aquarium was the dugong.

James Gathii Nominated for WTO Position

International law scholar, James Gathii (who holds the Wing-Tat Lee Chair in international law at Loyola Chicago) has been nominated for a high level position with the World Trade Organiziation (WTO) on its Appellate Body which hears appeals from reports issued by WTO dispute resolution panels - dealing with rules of trade between nations. Story here. Congrats to Professor Gathii.

Extending "Married" Income Tax Benefits to Those in German Civil Unions

The German Federal Constitutional Court has ruled that it is unconstitutional to fail to extend to partners in civil unions the income tax benefits enjoyed by married couples.  Here's how Spiegel Online International explains it:

The Federal Constitutional Court in Karlsruhe ruled that the unequal treatment of marriages and civil partnerships regarding taxes was unconstitutional, and demanded that the law be changed retroactively to August 1, 2001, the date that Germany legalized civil unions. Until new regulations exist, the current provisions for joint filings of married couples can be applied to civil partnerships, according to the decision.

The move had significant political support. All parties in the parliament, with the exception of Chancellor Angela Merkel's conservative Christian Democratic Union (CDU) and its Bavarian sister party, the Christian Social Union (CSU), had recently called for such equal treatment.

The full article is here.

This will be an interesting development to watch.

The Israeli-Palestinian Conflict: A Reading List

This compilation is marked by two conspicuous constraints: largely (i.e., with a few important exceptions) books only, in English. The first constraint is owing to the desire to keep the list manageable, the second because I’m not well acquainted with the bulk of the literature in other languages. I welcome suggestions for further titles.

• Abbas, Mahmoud (Abu Mazin). Through Secret Channels: The Road to Oslo—Senior PLO Leader Abu Mazen’s Revealing Story of the Negotiations with Israel. Reading, UK: Garnet, 1995.
• Abu-Lughod, Ibrahim. The Transformation of Palestine: Essays on the Origin and Development of the Arab-Israeli Conflict. Evanston, IL: Northwestern University Press, 1971.
• Abu-Lughod, Ibrahim. Palestinian Rights: Affirmation and Denial. Wilmette, IL: Medina Press, 1982.
• Abu-Lughod, Ibrahim, ed. The Arab-Israeli Confrontation of June 1967: An Arab Perspective. Evanston, IL: Northwestern University Press, 1970.
• Abuminah, Ali. One Country: A Bold Proposal to End the Israeli-Palestinian Impasse. New York: Holt McDougal, 2007.
• Alam, M. Shahid. Israeli Exceptionalism: The Destabilizing Logic of Zionism. New York: Palgrave Macmillan, 2010.
• Aranson, Geoffrey. Israel, Palestinians and the Intifada: Creating Facts on the West Bank. London: Kegan Paul International, 1990.
• Arnon. Arie, Sara Roy and Leila Farsakh. Palestinian Labour Migration to Israel: Labour, Land and Occupation. London: Routledge, 2005.
• Aruri, Naseer H. The Obstruction of Peace: The United States, Israel and the Palestinians. Monroe, ME: Common Courage Press, 1995.
• Aruri, Naseer H. Dishonest Broker: The Role of the United States in Palestine and Israel. Cambridge, MA: South End Press, 2003.
• Aruri, Naseer H., ed. Occupation: Israel Over Palestine. London: Zed Books, 1984.
• Asali, Kamil J., ed. Jerusalem in History. New York: Olive Branch Press/Interlink, 2000. 
• Auyyad, Abdelaziz A. Arab Nationalism and the Palestinians, 1850-1939. Jerusalem: Passia, 1999.
• Avineri, Shlomo. The Making of Modern Zionism. New York: Basic Books, 1981.
• Awad, Mubarak. Nonviolent Resistance in the Middle East. Philadelphia, PA: New Society            Publishers, 1985.
• Awad, Mubarak E. and R. Scott Kennedy. Nonviolent Struggle in the Middle East. Philadelphia, PA: New Society Publ., 1985.
• Barghouti, Omar. BDS: Boycott, Divestment, Sanctions—The Global Struggle for Palestinian Rights. Chicago, IL: Haymarket Books, 2011.
• Baroud, Ramzy. The Second Palestinian Intifada: A Chronicle of a People’s Struggle. London: Pluto Press, 2006.
• Baroud, Ramzy. My Father Was a Freedom Fighter: Gaza’s Untold Story. London: Pluto Press, 2010.
• Beinin, Joel and Rebecca L. Stein, eds. The Struggle for Sovereignty: Palestine and Israel, 1993-2005. Stanford, CA: Stanford University Press, with the Middle East Research and Information Project, 2006.
• Beit-Hallahmi, Benjamin. The Israeli Connection: Who Israel Arms and Why. New York: Pantheon Books, 1987.
• Ben-Ami, Shlomo. Scars of War, Wounds of Peace: The Israeli-Arab Tragedy. New York: Oxford University Press, 2006.
• Ben-Eliezer, Uri. The Making of Israeli Militarism, 1936-1956. Bloomington, IN: Indiana University Press, 1998.
• Benvenisti, Eyal. Legal Dualism: The Absorption of the Occupied Territories into Israel. Boulder, CO: Westview Press, 1990.
• Benvenisti, Eyal. The International Law of Occupation. Princeton, NJ: Princeton University Press, 1993.
• Benvenisti, Meron. Intimate Enemies: Jews and Arabs in a Shared Land. Berkeley, CA: University of California Press, 1995.
• Bernstein, Deborah S. Constructing Boundaries: Jewish and Arab Workers in Mandatory Palestine. Albany, NY: State University of New York Press, 2000.
• Bisharat, Geroge. Palestinian Lawyers and Israeli Rule: Law and Disorder in the West Bank. Austin, TX: University of Texas Press, 1989.
• Black, Edwin. The Transfer Agreement: The Dramatic Story of the Pact Between the Third Reich and Jewish Palestine. New York: Basic Books, 2001. ed.
• Black, Ian and Benny Morris. Israel’s Secret Wars: The Untold History of Israeli Intelligence. London: Hamish Manilton, 1991.
• Bowen, Stephen, ed. Human Rights, Self-Determination, and Political Change in the Occupied Territories. The Hague: Kluwer Law International, 1997.
• Boyle, Francis A. Palestine, Palestinians, and International Law. Atlanta, GA: Clarity Press, 2003.
• Brand, Laurie. Palestinians in the Arab World: Institution Building and the Search for a State. New York: Columbia University Press, 1988.
• Brenner, Lenni. The Iron Wall: Zionist Revisionism from Jabotinsky to Shamir. London: Zed Books, 1984.
• Bröning, Michael. The Politics of Change in Palestine: State-Building and Nonviolent Resistance. London: Pluto Press, 2011.
• Budeiri, Musa. The Palestine Communist Party, 1919-1948: Arab and Jew in the Struggle for Internationalism. London: Ithaca, 1979.
• Brynen, Rex, ed. Echoes of the Intifada: Regional Repercussions of the Palestinian-Israeli Conflict. Boulder, CO: Westview Press, 1991.

CFP: Institute for Global Law & Policy Conference at HLS

The Institute for Global Law & Policy (IGLP) at Harvard Law School announces its first biannual international conference, "New Directions in Global Thought," to be held in Boston on June 3-4, 2013.  According to its website, IGLP "is a collaborative faculty effort to nurture innovative approaches to global policy in the face of a legal and institutional architecture manifestly ill-equipped to address our most urgent global challenges." Panel and paper proposals on governance, inequality, conflict, and the rule of law are invited. More information is available here.

(The conference is scheduled to occur immediately after the 2013 Law & Society meeting in Boston, which I blogged about here.) 

Conference Announcement: Intercountry Adoption

A slightly edited version of an email that I received yesterday:

In February, the Herbert and Elinor Nootbaar Institute for Law, Religion and Ethics at the Pepperdine School of Law will host its 10^th annual conference.  This year we will explore the complexities of intercountry adoption from legal, social, and religious perspectives.  The Nootbaar Institute now welcomes proposals addressing this topic.

If you would like to present a paper or organize a panel of 3-4 presenters, please submit your proposal by October 8, 2012 to dana.zacharia@pepperdine.edu.

If you have questions about the substance of the conference, contact Bob Cochran at robert.cochran@pepperdine.edu or Jay Milbrandt at jay.milbrandt@pepperdine.edu. For questions about the details of the conference, contact Dana Zacharia by email dana.zacharia@pepperdine.edu or by phone (310) 506-6978.

For more information on the Nootbaar Institute and to view details of past conferences, please visit: http://law.pepperdine.edu/nootbaar.

Laplante on 'Negotiating Reparations Rights'

Lisa J. Laplante of the University of Connecticut School of Law has a new paper, "Negotiating Reparation Rights: The Participatory and Symbolic Quotients," up on ssrn.  Laplant's important article reminds me yet again how much new and excellent work is being done on reparations -- a topic that was almost abandoned by legal scholars there for a few years.  Laplante's interested in several problems -- beginning with the sad fact that there are insufficient funds to repair for past gross injustices.  Her laboratory is Peru, which emerging from an oppressive regime.  She focuses on two issues -- the right of victims to participate in the new government and also to receive something in the way of symbolic reparations.  (I'm rather skeptical of rights of participation -- I seem them as the democracy version of transparency -- necessary but far from sufficient; and also often rather over-rated as focal points of relief.)  Yet, these are important starting points; and one must recognize that they may be all that's available -- if they are even available.

Live Blogging "Critical Perspectives on Tax Policy" Conference at Emory Law - Part 3

The second and final day of the "Critical Perspectives on Tax Policy" Conference at Emory is under way.  

This morning, Tony Infanti (Pitt) presented "A Critical Perspective on International Equity." In that paper, he argues that tax issues are embedded in larger foreign policy and development issues.

Sarah Webber (Business, Dayton) presented "Earned Income Tax Alternatives: A Comparative Look at Other Developed Nations' Response to Working Poor Assistance."  She examines the tax benefits provided by G8 countries, as well as Norway, Australia and New Zealand, for families and low-income workers.  Professor Webber looks at the extent to which other countries have adopted aspects of the U.S. EITC program, and considers alternatives to a U.S. model.

Devin Fergus (History, Hunter College) spoke on "Reagan's Tax Eaters: College Students and the Origins of Today's Student Debt Crisis."  He is at work on a book and a documentary film on the subject.  I was captivated by Professor Fergus's explanation of how federal law, rates of inflation, the rise of conservatism in America - among other factors - have contributed to a true economic crisis in the financing of higher education.

The current project of Palma J. Strand (Creighton) is "Give the Kids a Break: Using Tax Policy to Support Care for Children."  She investigates poverty and economic inequality experienced by women and children.  Professor Strand argues for tax benefits for care-providers.

Camille Walsh (Interdisciplinary Studies, U. of Washington Bothell) spoke on "Racial Consciousness and 'Taxpayer Citizenship' in 20th Century School Funding Debates."  This is the topic of her book manuscript, Racial Taxation: School Finance and "Taxpayer Citizenship," 1869-1973, in which she argues that the historic disaggregation of racial and class identities in education-related litigation arose, in part, out of an interconnected set of ideas about property tax, citizenship, and a right to education. 

After lunch, Nancy Knauer (Temple) will offer reflections on and lead a discussion about "Critical Tax Theory: Earning a Place at the Table."

The conference is a great size -- 19 participants -- which has allowed for ample discussion.  The schedule also has included several unhurried breaks and meals, which has encouraged informal interaction.  Sometimes conferences can be too big or too programmed, but conference organizer Dorothy Brown (Emory) struck the right balance (and knows how to pick a great restaurant!).  

Law School Hiring: Loyola University (Chicago)

Loyola University (Chicago) seeks nominations and applications for an endowed chair in international law.  Additional info here. 

FCPA

My friend Mike Koehler has a "new and improved" website for his blog devoted to the Foreign Corrupt Practices Act.  Here's the link.

Permanent versus Temporary

Bridget's post about Texas got me  thinking about perpetuity.

I spend most of my time thinking about land conservation these days. In particular, I have been obsessed with intrigued by conservation easements.

Conservation easements are like those restrictive covenants and easements we muddled through in our property classes. Although the details differentiating them are unimportant here, one key selling point of conservation easement is that they can be (and in many cases must be) perpetual. One of the more controversial arguments I have made recently is that conservation easements should not last forever. While I have no intention or need to reopen  that debate here, I was surprised to stumble across an a recent article from the journal Biological Conservation. In Temporary Conservation for Urban Biodiversity, the authors argue against prioritizing brown fields for redevelopment. Specifically, they argue that leaving sites vacant temporarily (their study suggests 15 years) will increase urban biodiversity.

There are a lot of caveats here of course. Their case study is from Bremen, Germany where land-use planning laws and paradigms differ. They are only talking about what to do with brownfields, not benefits that may or may not accrue from greenfield conservation. And yet, I am still fascinated by this article. Land conservationists generally argue that brownfields should be developed instead of greenfields and that when we do preserve land, we should preserve it for as long as possible (preferably forever). This article challenges those assumptions.

Buchheit & Gulati On The Greek End Game

A year ago, I blogged about the Buchheit and Gulati paper, How To Restructure Greek Debt.  In contrast to the complete disinterest with which the downloading blogosphere greets attempts to promote my own papers, an exasperating cascade of SSRN downloads followed. 

Savvy Loungers know that Greece did not, in fact, restructure.  Instead, it concluded an agreement with the Eurozone member states, with the backing of the IMF, for access to a €110 billion facility that was judged at that time sufficient to repay all Greek public-sector debts maturing during the three-year IMF program period and to cover anticipated budget deficits during that period. The European Central Bank also embarked on a program of open market purchases of Greek and other Eurozone periphery debt and is thought now to own €40-50 billion of Greek sovereign bonds purchased in the secondary market.  And last month, the Greek Finance Minister said publicly that even the €110 billion EU/IMF facility might not be enough to tide Greece over until 2013. 

So what now?  That is, in the words of Buchheit and Gulati, what are the possible endgame scenarios regarding Greek debt?  According to Buchheit and Gulati there are three:

(i) Greece goes the distance with the current IMF/EU program and a debt restructuring is avoided altogether – Greece re-enters the public debt market in 2013 to refinance maturing debt and EU/IMF loans,

(ii) a debt restructuring of some kind becomes unavoidable after June 2013 when the EU’s “read my lips -- no restructuring until 2013” promise lapses by its terms, and

(iii) a liability management transaction [Lawyer-speak for “restructuring” IMHO, the authors’ linguistic gymnastics, notwithstanding – KDK] affecting some or all of the Greek debt stock is launched before 2013.

Buchheit and Gulati are irritatingly even-handed, at least superficially, in their treatment of the “go the distance” scenarios.  For example, by their own account, the Greek public sector debt in 2013 will represent 150-170% of GDP and half of that debt will be held by official sector creditors (the EU, ECB, and IMF). At least one of these actors claims preferred creditor status for itself.  And Greece will have just emerged from three years of IMF-imposed austerity measures that inhibit economic growth.  And yet Greece is still able to retap the public debt markets in 2013 under Scenario One? 

Of the post-2013 scenarios, Buchheit and Gulati envision three involving a restructuring of Greek debt and one involving Greece as a ward of the official sector for some indefinite period.  Needless to say, the “ward of state” option would be unacceptable to Greece (and not too attractive to the official sector either).  And any scenario involving an official sector hit (that is, the EU, ECB, and IMF, which will by that time own ½ to 2/3 of outstanding Greek debt) in order to repay commercial creditors is, according to the authors, nearly inconceivable.  Thus leaving, in reality, only two post-2013 options, both of which entail costs and risks. 

Thus, by their own terms, Buchheit and Gulati seem to suggest – without ever saying so -- that the pre-2013 restructuring scenarios are the ones that make the most sense.  For the details of those proposals, read the whole paper here. 

In the words of the inimitable Larry Solum, download it while it’s hot!

Icelanders Vote No In Weekend Referendum

Icelanders have rejected a deal to settle claims by Britain and the Netherlands stemming from the 2008 collapse of Icelandic banks.  The British and Dutch governments are now expected to sue Iceland in an attempt to recoup billions paid to depositors after the Icelandic bank failure.

The deal, which would have settled the dispute on favorable terms (though, apparently, not favorable enough for Icelanders), was negotiated by Clearly Gottlieb lawyer, Lee Buchheit, a frequent guest Lounger, whose role in the deal was praised last year by the Icelandic press. 

An interesting turn of events, indeed.  Hopefully when all is settled Buchheit can be persuaded back to the Lounge for a return stint to discuss the affair.

Who Needs a Pick-Me-Up?

As if the UCC itself didn't provide a sufficient buzz, now comes ... UCC coffee!

(Hat tip to Bob Lawless at Credit Slips.)

Withdrawing from Customary International Law

I've been following for a while now the controversy that my neighbors Mitu Gulati and Curtis Bradley have stirred with their article, "Withdrawing from Custom," which appeared in the Yale Law Journal last year.

It's a sign of the importance of their project that the Yale Law Journal on-line now has four responses up --by Carlos M. Vázquez , Leah Brilmayer and Isaias Yemane Tesfalidet, William S. Dodge, and David Luban.  Gulati and Bradley now have a response to the responses up on ssrn, "Mandatory versus Default Rules: How Can Customary International Be Improved?"

As I've said before, this is really outside of my area of expertise and knowledge -- except the part that relates to nineteenth century US history.  And what sort of surprises me about the debate is the extent to which history, particularly the pre-Civil War history, has become a battle ground.  As I see this, the pre-Civil War history is on Mitu's and Curtis' side -- that is, there was a sense that states were weak and that the equal dignity of states, as well as practical reality, required a weak system of international law.  This is one of the reasons why pre-Civil War southerners were so enamoured of Vattel and why they so frequently returned to international law as a model for Constitutional practice within the United States.  

Given this history -- and the fact that historical practice is so frequently on the side of conservativism -- I'm not surprised that Curtis and Mitu turn to it.  It provides an important model for the world they want, of weak enforcement of international law.  What surprises me, though, is that people who respond to Mitu and Curtis are returning to that world.  I would have thought that they'd have labeled the era of Vattel and the pre-Civil War as the bad old days and instead focus on the post-Civil War story and say that we're in a different and more enlightened world now.  At least if I were responding to Curtis and Mitu, that's what I would have argued.  

All of this is most interesting, to see how history is wielded as part of advocacy.  And on that I hope to have some more thoughts at a later point.