Posted by: Patrick Allen Foster | January 8, 2014

Papers, Noted

1. Michael W. McConnell, “Why Protect Religious Freedom?,” 123 Yale L.J. 770 (2013). A review of Brian Leiter’s book, Why Tolerate Religion? (For a short overview of Leiter’s thesis, see this piece, for example.) From Judge/Prof. McConnell’s review:

When it comes to accommodation ofpractices, and not just beliefs, Leiter argues that it would be impractical to accommodate all claims of conscience and “unfair” and “arbitrar[y]” to single out claims that are grounded in religious belief. So his answer: accommodate none of them, at least if the accommodation would inflict harm or shift burdens onto third parties. Exactly what is meant by these assertions, as we shall see, is less than clear. The argument depends on terms like “conscience,” “special,” and “harm,” but the book provides no precise definition of their meanings. The author is vague about what to do when accommodations do not cause harm and when religious practices have no secular analogue.

Organizationally, the book weds four chapters of ambitious and wide-ranging philosophical arguments to a fifth and final chapter primarily addressing two controversial issues of First Amendment law: whether religious practices are entitled to exemptions from formally neutral laws (to which Leiter answers “no”), and whether groups may be excluded from otherwise open public school speech forums because they espouse a religious point of view (to which he answers “yes”).

(H/T: Concurring Opinions.)

2. Bertrall L. Ross II (University of California, Berkeley School of Law), “Democracy and Renewed Distrust: Equal Protection and the Evolving Judicial Conception of Politics,” 101 Cal. L. Rev. 1565 (2013) (see also here): “Judicial interpretations of the Equal Protection Clause have undergone a major transformation over the last fifty years. A Supreme Court once suspicious of the democratic losses of discrete and insular minorities, now closely scrutinizes their democratic victories. A Court once active in structuring the democratic process to be inclusive of racial and other minorities, now views minority representation in the political process as essentially irrelevant. A Court once deferential to exercises of congressional power that enhanced the equal protection rights of minorities, now gives Congress much less leeway. What explains these shifts? An easy explanation is that the Supreme Court has simply become more conservative. But what underlies this conservatism? In this Article, I argue that the Court’s own evolving conception of politics underlies the changes in the meaning of equal protection. In the past, the Court saw politics through the lens of pluralist theory, the crucial defect of which was the risk that minorities would be politically marginalized. That understanding has given way to a public choice conception in which the Court presumes these same minorities to be too politically powerful. In essence, one form of judicial distrust of democratic politics has replaced another.” (H/T: Rick Hasen, Election Law Blog.)

3. Zahr K. Said, “Fixing Copyright in Characters: Literary Perspectives on a Legal Problem,” 35 Cardozo L. Rev. 769 (Dec. 2013). (H/T: Concurring Opinions.)

4. Samuel W. Buell, “Is the White Collar Offender Privileged?”, 63 Duke L.J. 823 (2014): “Enforcement institutions, and the political economy in which they exist, include features that both shelter corporate offenders and heighten their exposure to criminal liability. Corporate actors enjoy a large advantage in legal-defense resources relative to others. That advantage, however, does not pay off quite as one might expect.”

5. Matthew Andrews (Harvard Kennedy School), “Do International Organizations Really Shape Government Solutions in Developing Countries?”: “International organizations like the International Monetary Fund and World Bank have been supporting reform initiatives in developing country governments since at least the 1980s. Various authors have criticized this support, arguing that international organizations use their influence to impose common models of government on developing countries – infringing on the sovereignty of these nations and frustrating domestic processes of finding and fitting government structures to local contexts. Some suggest that a modern new public management model of government is being imposed on developing countries, whereas others claim that developing countries are being forced to adopt a broad-­brush neoliberal script. Such claims are seldom reinforced by empirical evidence showing the extent or nature of this influence, however. This leaves one asking, ‘Do international organizations really shape government solutions in developing countries?’ This article explores such question and finds that international organizations do have a major (and growing) influence on government structures in developing countries and that this influence does impose a common model on these countries.”

6. Greg Larson, Peter Biar Ajak, and Lant Pritchett, “South Sudan’s Capability Trap: Building a State with Disruptive Innovation”: “The prevailing aid orthodoxy works well enough in stable environments, but is ill-equipped to navigate contexts of volatility and fragility. … South Sudan, the world’s newest country, presents a post-conflict environment full of complex, adaptive challenges. Prior to the signing of the Comprehensive Peace Agreement (CPA) in 2005 South Sudan had no formal institutions of self-governance. During the CPA period and after independence in 2011, foreign development agencies have contributed billions of dollars of aid and technical assistance to ‘build capacity’ in the nascent Government of South Sudan (GoSS). The donors utilized approaches and mechanisms of support that at least nominally reflect the prevailing aid orthodoxy. We argue that orthodox state building and capacity building more or less failed in South Sudan, leaving the world’s newest country mired in a ‘capability trap’ (Andrews et al 2012). Despite countless trainings, workshops, reforms, and a large corps of foreign technical assistants embedded within state ministries, there is an absence of real change, and GoSS now ‘looks like a state’ but performs as anything but. The challenges presented by this new, complicated, post-conflict country demand innovative approaches to building state capability which go beyond importing ‘best practice’ solutions while feigning ‘client ownership.’ … To escape from the world’s newest capability trap, South Sudan’s government and its international donors must challenge themselves to imagine innovative paths to state building, which diverge from “business as usual” and attempt to create something that lasts.” (H/T: Chris Blattman.)

7. Cihan Artunç, “Legal Pluralism, Contracts, and Trade in the Ottoman Empire”: “Throughout the eighteenth and nineteenth centuries, non-Muslim Ottomans paid large sums to acquire access to European law. These protégés came to dominate Ottoman trade and pushed Muslims and Europeans out of commerce. At the same time, the Ottoman firm remained primarily a small, family enterprise. The literature argues that Islamic law is the culprit. However, adopting European law failed to improve economic outcomes. This paper shows that the co-existence of multiple legal systems, “legal pluralism,” explains key questions in Ottoman economic history. I develop a bilateral trade model with multiple legal systems and first show that legal pluralism leads to underinvestment by creating enforcement uncertainty. Second, there is an option value of additional legal systems, explaining why non-Muslim Ottomans sought to acquire access to European law. Third, in a competitive market where a subpopulation has access to additional legal systems, agents who have access to fewer jurisdictions exit the market. Thus, forum shopping explains protégés’ dominance in trade. Finally, the paper explains why the introduction of the French commercial code in 1850 failed to reverse these outcomes.” (H/T: Tyler Cowen.)


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