Liberal Law Research Articles

On the Origins of the Market for Corporate Law

I study the origins of the market for corporate charters and the emergence of Delaware as the leader of this market. Specifically, I assemble new data on 19th and 20th-century corporations to evaluate two widely-held beliefs: (1) the U.S. Supreme Court is responsible for enabling a national market for corporate charters in the 19th century and (2) Delaware became the leader in this market only because New Jersey (the initial leader) repealed its extremely liberal corporate laws in 1913. I argue that both claims are false: The Supreme Court always opposed a national market for corporate charters, and New Jersey’s decline began a decade before its 1913 repeal. It is more likely that the market for corporate charters emerged as a collateral consequence of interstate commerce and that New Jersey declined because Delaware and other states simply copied its laws.

Do Law Schools Oppress Minority Faculty Women? A Critique of Meera E. Deo, 'Unequal Profession: Race and Gender in Legal Academia' (Stanford 2019)

In our highly polarized political environment, race and gender issues have come to pervade and then agitate our formerly staid academic world. Some of the literature is angry, much of it is self-righteous; a public letter already signed by 153 scholars, artists and social critics of all colors and soon to be published in Harper’s, underscores the latter point. Query: Is the race and gender talk genuine? More specifically, are white male professors responsible for the professed unhappiness of their minority women colleagues? If so, can such men be trusted to help defuse tensions? This essay specifically tests Professor Meera Deo's assertion that “implicit bias” in law schools is holding minority female (and to a lesser extent male) faculty back. It then considers her second and more provocative claim, that minority faculty can generally offer better training in “solving complex problems.” (“Unequal Profession: Race and Gender in Legal Academia.” (Stanford UP (2019)). Regarding the former claim, Deo’s explains that minority women are not hired according to fair standards, not welcomed when they are hired, and not fairly evaluated for promotion. In addition, she argues, minority women professors are abused by their students. Because Deo barely tries to substantiate the second claim, it is dealt with only briefly in this essay. The finding here is that the principal claim is not proven. Close analysis of its components, along with Deo’s own statistics, bears out that for all of society’s failures to establish full equality, our overwhelmingly liberal law faculties offer far more equitable treatment than Deo acknowledges. Deo is to be commended for dealing with an issue close to the heart of academic life today. In pitting race and gender groups against one another, however, Deo does unnecessary damage to our self-understanding and sense of well-being.

Regulating Food Work: The New Competition for the Household Meal

This paper examines the roles law plays in the strategies food producers pursue to compete for the distribution and delivery of the household meal. It tracks the producers’ use of liberal labour law when they compete by increasing labour flexibility and reducing labour costs. The concern behind the inquiry is whether the convenience of our household meals might come at the expense of a class of vulnerable food workers. The paper identifies the counter to this liberal law and the points at which it seeks to reassert public labour law standards. By researching the field of meal distribution and delivery, rather than analysing just one law, its case study method aims to show how these contrasting laws relate to each other in the socio-legal field of work and how each law might matter realistically to the future of food work. On the empirical evidence, the study finds that what matters now is the elemental struggle to have food work treated as regular employment. Then, it is a matter, for that employment, that it be protected by the terms and conditions of the appropriate award.

The liberal, the vocational and legal education: a legal history review – from Blackstone to a law degree (1972)

ABSTRACT The recent debate concerning changes in the examination for entry to the solicitors’ profession have seen the law schools present themselves as being in a vulnerable position – victims of a controlling and regulatory legal profession. The debate has also revived concern about the dichotomy between teaching law as a liberal arts subject and teaching law as vocational training. This legal history review provides a snapshot of the discourses concerning academic legal education, what was perceived as desirable and whether this was achieved in practice. This review teaches us that academia has had greater power and control over the nature and role of legal education than it ever really wanted.

Why Autonomy Must Be Contract’s Ultimate Value

In “The Choice Theory of Contracts”, we develop a liberal theory of contract law. One core task of the book was to persuade advocates of economic analysis that they must situate their enterprise within our liberal framework. Autonomy, rightly understood, is the telos of contract. Oren Bar-Gill pushes back strongly in “Choice Theory and the Economic Analysis of Contracts”. He offers a penetrating – perhaps devastating – critique of our approach. Bar-Gill notes the substantial convergence between choice theory and a welfarist view. If he is right, then what does choice theory add? Our task in Part I of this Essay is to demonstrate that welfare economics cannot simply absorb contractual autonomy. We show that choice theory has irreducible normative and reformist value along the four dimensions that are core to Bar-Gill’s critique: (a) contract’s regard for the future self, (b) the special role it ascribes to relational justice, (c) its distinction between utility and community, and (d) its prescription of intra-sphere multiplicity. We go further: welfare economics is indefensible without autonomy as its foundation. Parts II and III respond to sharp critiques of “Choice Theory” by Yotam Kaplan, Prince Saprai, Ronit Levine-Schnur, Sharon Shakargy, and Ohad Somech. We discuss the proper place of contract values besides autonomy in a liberal contract law; explore the distinctive role contract plays in a liberal polity; and show how intra-sphere contract type multiplicity limits, rather than augments, state power. Since publishing “Choice Theory”, we have engaged dozens of critiques, including the six in this Volume. All this rigorous debate confirms for us one core point: contract’s ultimate value must be autonomy, properly refined. It cannot be welfare. Nor can foundational value pluralism possibly suffice. Autonomy justifies contract.

Commercialization of the gene-edited crop and morality: challenges from the liberal patent law and the strict GMO law in the EU

The EU aspires to utilize the economic advantages of gene-editing technology on one hand and ensure human health and environmental safety on the other. Surrounding the fierce debates over emerging gene-edited plant, the current debate focused on the issue of whether the gene-edited crop should be within or outside the GMO law and its implication for innovation. It should not be forgotten that it is also involved in the complex patentability issues pertaining to the legal interpretation of the patent law. The gene-edited crop is governed by GMO regulations due to its potential risk to human health and environmental safety. But it is heavily patented, as patent regulations ignore its potential risk. This article examines the discrepancy of the gene-edited crop between the existing GMO law and the patent law and reveals the challenges to current EU jurisdiction, including the international trade impediment challenge, the patent monopoly challenge, the market confusion challenge, and the agricultural economy suspension challenge. In the end, this article argues that EU GMO regulations should be bridged with a patent system in facing the regulatory challenges from the gene-edited crop.

Woman and Liberal Revolution

The study of the first liberal Penal Codes (Spanish from 1822/1848/1850 and Portuguese from 1852) shows that the Spanish and the Portuguese woman share the same legal frame, but for a few differences. This frame preserves the feminine pattern of behaviour established by the Old Regime Courts, subject to man’s authority and to marriage as a guarantee of social and family order, but with a change: man’s honor resting upon the woman is honesty, not any longer privileged (married and honest) but imposed (home angel) and punished (dishonest woman). Between applying mercy or an exemplary treatment to a woman, liberal law chooses the last. Woman is not the plural category of the Old Regime any more, but the dual category angel/dishonest, which brings about her fragilitas. This leads to equality among women and approach to men in most offenses, but for the glaring inequality with regard to honor. An exception: the Portuguese wife, protected against procuring, has the right to take vengeance on his husband for her honor, whereas the Spanish wife does not have that right.
 Keywords: Spanish Penal Code 1822/1848/1850. Portuguese Penal Code 1852. Woman. Fragilitas. Honesty.

A Shrinking Space: A Dynamic Relationship between the Judiciary in a Liberal Society of Hong Kong and a Socialist-Leninist Sovereign State

Abstract Hong Kong provides a unique case study on the roles and functions of the judiciary within an authoritarian or semi-authoritarian sovereign. Under the unique constitutional arrangement in Hong Kong, a liberal common law judiciary in a highly sophisticated modern metropolis is encapsulated within a Socialist-Leninist sovereign regime that ideologically rejects separation of powers, independence of the judiciary and values of individual liberalism. Notwithstanding the sharp ideological differences and the greatly asymmetrical distribution of social, economic and political powers in this One Country, Two Systems constitutional model, it is argued that the relationship between the courts and the authoritarian sovereign power is and has been complex and dynamic. The Hong Kong courts have been able to create their institutional space by establishing an impressive liberal constitutional common law, but that constitutional space is shrinking as the over-zealous sovereign is increasingly assertive of its views on matters that it perceives to be affecting state interests. By examining a series of controversial decisions, this paper argues that there are reasons that the courts could, with creativity and sensitivity, maintain a delicate and balanced relationship with the sovereign without succumbing to the political pressure, but that the greatest threat of independence of the judiciary comes from within the judiciary in internalizing the values of the socialist state.

Gods or Monsters? Non-Explicit Consent in the hastening of deaths by Intensivists in Belgium

The Belgian Euthanasia Act of 2002 (The Act), amended in 2014 to include the Minor Act (The Minor Act), has drawn international criticisms for its liberal laws and practices regarding Euthanasia. This research study is a response to media allegations that the liberal laws on euthanasia has encouraged doctors to adopt a paternalistic approach towards their patients by terminating their lives without their explicit consent, i.e. engaging in involuntary Euthanasia. Although in theory, only voluntary euthanasia (explicit patient request and therefore consent) is permitted in Belgium, the media allegations implied that in practice, involuntary euthanasia (no explicit patient request and therefore no consent) is practiced, especially in the Intensive Care Units (ICUs) in Belgium. One major criticism is that because of its liberal laws, Belgian doctors are killing patients without their non-explicit consent. Specifically, it is alleged that Intensivists are shortening lives or hastening the deaths of their patients without their non-explicit consent in the ICUs in the Wallonia Region in Belgium. This research study conducted an empirical-qualitative study to discover if these media allegations were true or false, by interviewing heads of ICUs in five major hospitals in the Wallonia region in Belgium. The research discovered that the media allegations are true, but they are also false. The media allegations are true because shortening life or hastening the death is sometimes practiced in the ICUs without the patient’s non-explicit consent. The media allegations are false because consent is not available due to the patient’s critical condition, and not because it was not asked for. In other words, what is practiced in the ICUs is non-voluntary euthanasia or where patient is unable to request or consent to euthanasia.

A Shrinking Space: A Dynamic Relationship Between the Judiciary in a Liberal Society of Hong Kong and a Socialist-Leninist Sovereign State

Hong Kong provides a unique case study on the roles and functions of the judiciary within an authoritarian or semi-authoritarian sovereign. Under the unique constitutional arrangement in Hong Kong, a liberal common law judiciary in a highly sophisticated modern metropolis is encapsulated within a Socialist-Leninist sovereign regime that ideologically rejects the idea of a separation of powers, independence of the judiciary and values of individual liberalism. Notwithstanding the sharp ideological differences and the greatly asymmetrical distribution of social, economic and political powers in this One Country, Two Systems constitutional model, it is argued that the relationship between the courts and the authoritarian sovereign power is and has been complex and dynamic. The Hong Kong courts have been able to create their institutional space by establishing an impressive liberal constitutional common law, but that constitutional space is shrinking as the over-zealous sovereign is increasingly assertive of its views on matters that it perceives to be affecting state interests. By examining a series of controversial decisions, this paper argues that there are reasons that the courts could, with creativity and sensitivity, maintain a delicate and balanced relationship with the sovereign without succumbing to the political pressure, but that the greatest threat of independence of the judiciary comes from within the judiciary in internalizing the values of the socialist state.

Reported patterns of pregnancy termination from Demographic and Health Surveys.

IntroductionDemographic and Health Surveys, widely used for estimation of fertility and reproductive health indicators in developing countries, remain underutilized for the study of pregnancy termination. This is partly due to most surveys not reporting the type of pregnancy termination, whether spontaneous or induced. Reproductive calendar data makes it possible to examine termination patterns according to contraceptive use at the time of pregnancy. Contraceptive failure is expected to increase the likelihood of induced abortion helping in the interpretation of reported termination patterns.Materials and methodsWe use individual-level calendar data regarding 623,966 pregnancies to analyze levels and differentials in reported patterns of pregnancy termination by age, union status, and contraceptive use in 107 DHS surveys from 50 countries. From the estimates of the probability of pregnancy termination, we compute derived reproductive health indicators providing an assessment of what is driving the differences by comparison to the few surveys reporting the type of pregnancy termination.ResultsFrom our estimates, 10.9% of pregnancies do not end in live-birth and 63.7% of them are spontaneous terminations. Reported pregnancy termination is higher among women using contraceptives, consistent with expectations. Very low levels of reported PT in some countries, particularly in sub-Saharan Africa, suggests possible underreporting. Differential patterns emerging from cluster analysis and regional rates indicate high rates of pregnancy termination driven by induced abortion in countries from the Former Soviet Union and Asian countries with liberal laws. Most countries with restrictive abortion laws have low levels of reported termination. While the probabilities of pregnancy termination are higher at older ages, termination rates generally peak at younger ages due to higher conception rates.DiscussionThis is the first large comparative study of the patterns of reported pregnancy termination in DHS surveys. While we have explored the extent to which differences arise from spontaneous terminations or induced abortion, more research is needed regarding the determinants of reported pregnancy termination.

AMERICAN CONSERVATIVES AND DOMESTIC POLITICAL STRUGGLE OVER THE ISSUE OF IMMIGRATION IN MID 1990s

After the victory of conservatives in Congress elections of 1994, various Right groups intensified their efforts, on the one hand, to reconsider liberal immigration laws, and on the other, to tighten policies on illegal immigrants. This article analyzes two interconnected initiatives introduced by the conservatives in the mid 1990s: Proposition 187, also known as the “Save Our State (SOS)” initiative, and The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). In the first case, State of California conducted a referendum on a law that would establish a nationwide citizenship verification system, as well as denying illegal immigrants access to medical care, public schools, and other social services of the state. In the second case, the law prohibited new immigrants from receiving pensions until reaching the age of 65 or appealing the decision of the Immigration and Naturalization Service to prevent a foreigner from entering the US. It also raised visa fees and introduced the terms for denying the right to enter the United States for people with a history of illegal stay in the United States. The examination of approaches and propositions of various groups of conservatives to the immigration issue allows to conduct a comprehensive and objective evaluation of internal political processes in the United States during this period.

Liberalism and the Commons

In “The Liberal Commons” Michael Heller and I celebrated commons property types that mainstream property theory obscures notwithstanding their prevalence in contemporary law. In this Essay, prepared for the Cornell Law School Symposium celebrating Greg Alexander’s retirement, I maintain that the connection between liberalism and commons property types is more precise and, in a sense, more complicated. On the one hand, I claim that a liberal property law, which is founded on and thus must be committed to individual self-determination, must proactively facilitate commons property types, in line with what I call property’s structural pluralism. On the other hand, I contend that a liberal law should not lend its support to commons property types not only if they undermine the liberal commitment to exit (as discussed in The Liberal Commons), but also if they fail to comply with the prescriptions of property’s relational justice. Relational justice, I argue, implies that commoners’ right to exclude potential entrants must not be unlimited; it furthermore requires that for law to support a commons property, its internal governance regime must not undermine the equal concern and respect of its members. Situating commons property types at the core of liberal property law offers a better understanding of the liberal ideal of property as well as of both the promises and the dangers of the commons. Refining the proper role of commons property types and the prerequisites of their legitimacy also sets up a reformist agenda, which can push liberal property law to better comply with its autonomy-based underpinnings. It may further show why – although much of the critique of the realities of property in actual liberal systems is justified – the liberal idea of property must not be too quickly discarded. Properly conceived, I conclude, liberal property both augments people’s opportunities for (voluntary) collective self-determination and restrict their opportunities for interpersonal domination.

Jacques Vergès, Rupture Strategy and the Argentinean New Left: Circulations and Adaptations of a Judiciary Theory

This article deals with the transatlantic circulations of the theory of “rupture strategy”, popularised by French lawyer Jacques Vergès in the early 1960s. In the early 1970s, the concept was imported and adapted to the Argentinean context by radical left-wing lawyers. Their uses of rupture strategy were modelled by their perception of Argentina as being a “semi-colonised” country, whose situation was comparable to that of Algeria. In the 1980s however, in a context of democratisation, the same lawyers reassessed their uses of “Vergesian” vocabulary and progressively renounced rupture strategy, while still maintaining a critique of liberal penal law. To account for this evolution, this article adopts a socio-historical perspective. It shows that the reception of Vergès’ theory must be understood as a dynamic process, in which the permanent interaction and the contradictory evolution of two different contexts (context of reception and context of origin), interfere with the continued importation of rupture strategy.

Parents’ request for termination of pregnancy due to a congenital heart defect of the fetus in a country with liberal interruption laws

Objectives: This study aimed to evaluate the prenatal rate of congenital heart defects (CHDs) and the frequency of termination of pregnancy (TOP) due to a CHD, depending on the severity of the defect and concomitant diseases of the fetus.Methods: The data were assessed retrospectively between 2002 and 2017. Ultrasound examination was performed mostly in the second trimester. For analysis, the CHDs were divided into three groups of severity and three groups of fetus impairment.Results: A total of 40,885 fetuses underwent echocardiography. The CHDs were detected in 1.0% (398/40,885) and were an isolated anomaly in 69% (275/398). Forty-nine percent (197/398) of families decided to TOP. In all groups of severity, the rate of TOP rose linearly when comparing isolated defects and cases with associated morphological and genetic impairments. The TOP was significantly dependent on the associated anomalies in patients with the most correctable defects (p < .001) and the severity of CHDs in isolated cases without any other impairment (p < .001).Conclusion: The parents’ decision to terminate increased with the severity of the defect and the associated anomalies of the fetus. The parents were mostly influenced by the associated anomalies when the CHD was correctable, and genetic factors played a more important role than morphological ones.

Intelligibility, Moral Loss and Injustice

AbstractIn Liberalism's Religion, I analyse the specific conception of religion that liberalism relies upon. I argue that the concept of religion should be disaggregated into its normatively salient features. When deciding whether to avert undue impingements on religious observances, or to avoid any untoward support of such observances, liberal states should not deal with ‘religion’ as such but, rather, with relevant dimensions of religious phenomena. States should avoid religious entanglement when ‘religion’ is epistemically inaccessible, socially divisive and/or comprehensive in scope. In turn, states should show special deference to religious observances insofar as they exhibit what I call integrity – whether personal or collective. The upshot of this interpretive strategy is that liberal law need not recognise religion as such. As a result, there are gaps between the liberal construal of disaggregated religion and the lived experience of religion as a uniquely integrated experience. Are these gaps morally regrettable? Are they unjust?

Istraživanje mišljenja stranih investitora o kvalitetu obrazovanja i stručnog usavršavanja radne snage u AP Vojvodini

One of the measures for the promotion of economic development, which has been intensively applied in the region of the Autonomous Province of Vojvodina in recent years, refers to stimulation of FDI inflows. AP Vojvodina is considered to be a very attractive investment location, which especially stands out for its favorable geographical location, liberal foreign investment laws and labor laws, highly educated and skilled workforce that can be engaged at low costs, as well as the tax incentives and numerous financial incentives available interested foreign investors. Reviewing the scientific and professional literature, it can be concluded that the value of human capital has very often been investigated as a determinant of FDI inflows, and mainly expressed through the level and quality of education and skills of workers. By conducting a survey of foreign investors operating in the free investment zones of AP Vojvodina, it was concluded that the respondents were satisfied with the quality of education and professional development of the workforce. By analyzing the obtained research results, the authors of this empirical study, while respecting the opinions of other authors, simultaneously provided scientific contributions to the subject area, as well as practical contributions in the form of concrete recommendations for public policy makers, primarily foreign investment policy and education policy in the territory of AP Vojvodina.

“What Value Should We Attach to All These Petitions?”: Petition Campaigns and the Problem of Legitimacy in the Nineteenth-Century Netherlands

This article focuses on large-scale petitioning campaigns, or petitionnementen as they were called, organized between 1828 and 1878, including contemporary reflections and debates on this new phenomenon. Although there were only a handful of petitionnementen, they had a remarkable impact—not only on the issues at hand but also on the balance of power between Crown, Cabinet, Parliament, and people. Mass petitions necessarily challenged the political system, whose legitimacy was based on elections under a limited franchise. Based on parliamentary reports, pamphlets, and other sources reflecting on petitioning in general and the petitionnementen more specifically, this article asks how petitioners claimed legitimacy, and how politicians and other observers responded to those claims. Special attention is given to the international context within which Dutch petitioning practices developed. The article focuses on three case studies, representing the major petitioning campaigns of this period: the Southern petition movements of 1828–1830 that were a catalyst for the Belgian revolution (thus reinforcing the association between mass petitioning and revolution), the Anti-Catholic “April Movement” of 1853, and the so-called People’s Petitionnement of 1878, against the liberal education law. Remarkably enough, in the Netherlands it was not progressive reformers, but most prominently conservative Orthodox Protestants who organized petitionnementen.

The effect of concealed carry weapons laws on firearm sales

Despite numerous studies exploring the link between concealed carry weapons (CCW) laws and the effect of “more guns, more/less crime” it is unknown if liberalizing CCW laws indeed influences legal firearm sales. Building on previous research, I hypothesize that liberal CWW laws are associated with increases in handgun sales while having no association with long gun sales. Using National Instant Background Check System (NICS) data as a proxy for firearm sales and state fixed-effects regression models to examine the effect of CCW laws on gun sales in all 50 states the results can be simply put: liberal CCW laws are associated with increases in handgun sales, are not associated with long gun sales, and are associated with an increase in the overall share of firearms sold that are handguns. This work supports the idea that the expansion of gun rights via liberal CCW laws has increased the rate of handgun sales in the United States, but not the rate of long gun sales. Implications for future research on firearms and policy are discussed.

Coerced and Unfree in the Private Sector

We style ourselves as liberal polities and law purports to sustain liberal values. It does not claim to maintain and perpetuate capitalist goals as such. Yet, its adherence to the sacrosanct nature of private property, individualism and freedom to contract allow it do just that. To further this unmentioned objective, law is twisted and bent to ignore the supposed right of workers as individuals to be autonomous decision-makers. The indefensible assumptions made give capitalists coercive powers that inhibit the working class from achieving economic and political autonomy. The owners of the means of production are given political and economic privileges by a legal system that pretends to serve the liberal project. The contradiction between liberal law and its capitalist orientation is plain, leading to occasional and always transitory reforms. This is illustrated by this overview of the legal mechanism of adjustment devised by supposedly liberal law to regulate capital/labour conflicts.