Monthly Archives: May 2005

The Strange Case of the Disappearing Consumer

In November 2004 IOSCO (the International Organisation of Securities Commissions), which promulgates international standards for securities regulation, published a consultation document about its consultation procedures. The document contained a set of general objectives. The second of these stated that IOSCO would conduct public consultations:

To benefit from the expertise of market intermediaries, exchanges and other market operators, securities clearing and settlement system service providers, endusers and consumers, auditors and auditing companies, and other public authorities, international standard setters, international financial institutions, and regional development banks, when assessing and analyzing regulatory issues

IOSCO received a very limited number of public comments on this document. It is unclear how many private comments it received. The April 2005 Executive Committee Report on IOSCO Consultation Policy and Procedure does not mention consumers at all. Where the inclusive stakeholder paragraph appeared in the draft there now appears the following language:

To benefit from the expertise of the international financial community when assessing and analyzing regulatory issues.

What happened to the consumers? Is IOSCO just responding to the lack of comments by consumer groups or does the change in language reflect a change in policy? It's worth noting here that the International Bar Association's comments on the November draft emphasised that transparency in rule-making at the supranational level is important because:

It seems increasingly clear that the essential discussion of standards will take place at the IOSCO level rather than later at the home country level and that home country regulators will increasingly take the position that the standards adopted by IOSCO foreclose further discussion in the home country of the topics covered by these standards. This process is legitimate in democratic rulemaking when, and only when, those same principles have been fully vetted in a public manner at an international level.

In the same way, if IOSCO decides not to seek consumer input, then the consumer voice may be lost at the domestic level as well.

Posted in Econ & Money | Leave a comment

Building the Bottom Up from the Top Down

Below you will find the introduction and the final section of the conference draft of “Building the Bottom Up from the Top Down,” a paper that I’ll be giving at a seminar in Paris this weekend.

As always, I look forward to learning from your comments.

Update: It’s not posting properly, so I’ve placed it in a separate file. Try: Building the Bottom Up from the Top Down.

Posted in Talks & Conferences | 6 Comments

Why I Write ‘Legal Scholarship’

The question is posed:

PrawfsBlawg: Why I Write. (No, Really, Remind Me Again — Why Do I Write?): I want to ask the question: why do we write? This is a surprisingly difficult question on which I'd be curious to hear from my fellow bloggers (or blawgers, or…forget it). Let me limit it to the question, why do we write legal scholarship?

You could say that before I got tenure, I wrote for tenure. And there's a grain of truth to that; I certainly made it a goal to write so much that the faculty — which claims to hold to a norm that you should not vote against a person unless you have read all their writing — would find voting 'yes' to be the lesser of two evils.

But by now I have had tenure for some time, so I don't really have to write. Failure to write at all would cost me some respect — unless it's for good cause (say, service to the community or intense involvement in pro bono litigation). That said, law teaching is a surprisingly monastic life. I don't actually spend much of my day talking to anyone. And Miami is far enough away from other places where people do what I do that getting to them is an Event. And rare. So respect or its lack actually has little implact in my daily life. So that can't explain why I write several times as much as the uncertain minimum needed to avoid the cold shoulder.

Is it for money? Legal academic writing is unpaid. If a keynote address pays anything over expenses, it's a memorable payday. It doesn't happen very often. I once scored in the low four figures for a speech and a paper and thought it the most amazing thing. At the margin, in some years, the Dean has a very tiny amount of discretionary money to throw towards people who he wants to reward, and writing is one thing he says he wants to reward. Although, 102% or even 104% of a salary that is increasingly behind the norms of the trade is still a salary that is falling behind the norms of the trade — and when coupled with increases in health insurance costs, one that may be losing real buying power. So I guess I'm not doing it for money. Or if I am, I'm an idiot.

So why write then? I think it varies. Let's look at the last five years or so:

++Some articles I wrote because I wanted to understand something, and only writing it down would make it clear.

(Almost everything fell into this category in the early days — I'm not sure if that's because Internet law was new, or because I was, or both. But my digital signatures and certificates work, and also my crypto work, generally fell in this category. And, my next big project does too…)

++ Many articles I wrote because the idea seemed cool so I wanted to share them, and/or I wanted to work them out on paper to better understand them..

++ Some articles I wrote because I was angry and wanted to fix something.

++ I wrote an article because someone attacked me, seriously mis-stating both my arguments and the relevant law.

++ Some articles I wrote because someone I like asked me to and/or because it was the price of admission to a conference where I got to meet nice people and learn interesting things…

  • Internet's International Regulation: Emergence and Enforcement, in EVOLUTION DES SYSTEMES JURIDIQUE, BIJURIDISM ET COMMERCE INTERNATIONAL / THE EVOLUTION OF LEGAL SYSTEMS, BIJURALISM AND INTERNATIONAL TRADE (Louis Perret & Alain-Francois Bisson eds., 2002).
  • The Collision of Trademarks, Domain Names, and Due Process in Cyberspace, 44 COMM. ACM. 91 (2001).

Which motive produces the best articles? That's perhaps not for me to say.

Posted in Personal | 7 Comments

Corporate Manslaughter

I have been interested for a while in the ways that financial trade associations seek to influence the law, particularly in the context of international financial markets and transactions. This week I am working on my draft of a paper called Private International Law-Making for the Financial Markets which I am going to talk about at the Law & Society Conference in Las Vegas. I have been noticing the ways in which financial trade associations (such as the Bond Market Association and the Securities Industry Association) work together and separately in commenting on proposed regulations.

Last week I saw that CMS Cameron McKenna is inviting people to respond to a survey about the UK Government's proposed Corporate Manslaughter Bill (this proposal is from before the recent election but the new Government proposes to introduce a Bill). The English rules on corporate liability for manslaughter are currently very restrictive. A company is only criminally liable for manslaughter where a “directing mind” of the company was liable for manslaughter. It is difficult to succeed in prosecuting a large company for manslaughter because even if there is one person who is the directing mind that person is likely to be far removed from the people who may be responsible for causing others' deaths.

CMS Cameron McKenna is a law firm, not a financial trade association, and the topic it is inviting comments on is not really directly an international finance topic (although the statute would, if enacted in the form proposed in March, affect the criminal liability of foreign corporations). But CMS Cameron McKenna's invitation to comment on the Government's proposals is an invitation to comment to the firm (which states on its web site that it is preparing a response to the government's consultation) rather than to the Home Office (which published the draft Bill in March). The survey document does not seem to invite responses from those who approve of the idea of increasing the risks of corporate criminal liability. For example, one question asks:

Do you believe the proposed new offence could encourage risk averse behaviour and bureaucratic systems?

Another question asks:

Will those industries which are traditionally exposed to health and safety issues struggle to attract top-level managerial talent in the face of corporate manslaughter prosecutions?

The email on CMS Cameron McKenna's list (although not the web page) suggested that the firm was preparing a response to the consultation on behalf of the CBI (Confederation of British Industry) which expressed reservations about an earlier proposal to expand corporate criminal liability, and in its response to the Queen's Speech said

If the government is going to press ahead on corporate manslaughter, it must ensure that the legislation is fair. The grossly negligent must be separated from genuinely responsible employers who do everything possible to ensure safety.

If the eventual response is published in the CBI's name I'd have no problem with this, but if it is to be published in the law firm's name I would have some problems because of the skewed nature of the survey questions and because I would think that people (in the UK) might think that a law firm would be more neutral on such questions than the CBI. But then perhaps my views about how the legal profession should behave are old-fashioned?

Posted in Econ & Money | Leave a comment

Lessig’s Other Battle

Lawrence Lessig and John Hardwicke Fight Sexual Abuse and the American Boychoir School. Awful. Amazing. (Spotted via the increasingly indispensable Ernest Miller.)

Larry Lessig is a brave guy.

Posted in Law: Everything Else | 3 Comments

Eurovision Constitution

I'm not officially guest blogging until tomorrow, but couldn't resist commenting on the Eurovision Song Contest . I have always thought that this contest was an example of how very bad a harmonised European culture could be. And these days this harmonised European culture is often expressed in English. But it never really seemed to matter – after all, no-one has to watch the thing. This year, however, it may matter more because of the imminent Dutch referendum on the EU’s constitutional treaty. EUobserver cites an article in De Telegraaf on 21 May which reports angry Dutch reactions to the contest based on the prominence of Eastern European countries in the final. Just one more piece of evidence that the referenda on the constitutional treaty may in fact be referenda on enlargement (although odd because a number of the Eastern European Eurovision participants are not members of the EU).

Posted in Kultcha | 1 Comment

The Thorn in the Rose

At first blush, the proposal at davidshcess.com [seen via Ascription is an Anathema to any Enthusiasm] sounds so sensible: Tired of originalists like Justice Scalia going on about how the Eighth Amendment only prohibits punishments that were cruel and unusual in 1791, and hence the death penalty (and maybe chopping off ears, and certainly stockading) are constitutional today? Want to do something about them? Just introduce a new constitutional amendment re-enacting the Eighth. No one would dare vote against it (are you for cruel and unusual punishment?) and it would re-set the clock to modern times (are you for cutting off ears?).

But in fact, it's a rotten idea. It surrenders a key point of principle. I am, in the main, relatively sympathetic to at least a weak form of originalism. If words don't have meanings that we can collectively ascribe to them, with some consistency over time, then constitutional government is a bit of a farce. I'd like to avoid that, for all that Senators Frist and Santorum are determined to make it difficult.

But in the originalist constitution I read, there's not only play in the joints, but in some cases an invitation to evolve. It's not everywhere. The requirement that the President be 35 isn't a requirement that s/he have the relative wisdom and maturity of a 35 year old in 1783, or have lived an equivalent fraction of the average life expectancy. It's that the person be 35. On the other hand, some parts of the Constitution do read like invitations to change with the times. ('It is a Constitution we are expounding here' after all.) And the cruel and unusual clause is definitely one of them. So there's no need to re-set the clock on cruelty — it's always ticking. And it would be wrong to provide such luscious ammunition to those who suggest otherwise.

Posted in Law: Constitutional Law | 7 Comments