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In this Article, Professor Brian Galle responds to recent claims, most prominently by Anup Malani and Eric Posner, that much of the work of the charitable sector should be farmed out to for-profit firms. For-profit firms are said to be more efficient because they can offer higher-powered incentives to cut costs. Professor Galle argues, however, that because of the high costs of monitoring and the presence of externalities, low-powered incentives are preferable for firms that produce public goods. Further, allowing some for-profit firms to receive charitable subsidies would raise the cost of producing those goods in government or other firms because it would diminish the “warm glow” workers enjoy from being recognized as self-sacrificing.
Responses in See Also:
Takings jurisprudence is engaged in a constant paradox. It is conventionally portrayed as chaotic and muddy, and yet attempts by the judiciary to create some sense of order in it by delineating this field into distinctive categories that apply to each a different set of rules are often criticized as analytically incoherent or normatively indefensible. In this Article, Professor Amnon Lehavi offers an innovative approach to the taxonomic enterprise in takings law by examining what is probably its starkest and most entrenched division: that between taking and taxing.
American courts have been nearly unanimous in refusing to scrutinize the power to tax, viewing this form of government action as falling outside the scope of the Takings Clause. Critics have argued that the presence of government coercion, loss of private value, and potential imbalances in burden sharing mandate that the two instances be conceptually synchronized and subject to similar doctrinal tests. Professor Lehavi argues that this dichotomy, and other types of legal line drawing in property, should be assessed not on the basis of a point-blank analysis of allegedly comparable specific instances, but rather on a broader view of the foundational principles of American property law and of the way in which takings taxonomies mesh with the broader social and jurisprudential understanding of what “property” is.
Identifying American property law as conforming to two fundamental principles—formalism of rights and strong market propensity—but at the same time as devoid of a constitutional undertaking to protect privately held value against potential losses as a self-standing strand in the property bundle, Professor Lehavi explains why prevailing forms of taxation do seem to be disparate from other forms of governmental interventions with private property. Focusing attention on property taxation, he shows why taxation is considered a lesser-evil type of government coercion, how the taking/taxing dichotomy better addresses the public–private interplay in property law, and why taxation is often viewed as actually empowering property rights and private control of assets.
Professor Kevin Toh reviews Joseph Raz’s Between Authority and Interpretation: On the Theory of Law and Practical Reason. Rather than selecting pieces of Raz’s work to dissect, Professor Toh takes a more holistic look at the common assumptions underlying the book’s collection of essays. In sum, Professor Toh criticizes Raz’s departure from the benchmark of Hart’s legal theory.
Many of the policy changes that were made in response to the September 11th attacks affected non-citizens far more adversely than they did citizens. In this Note, Cohen examines post-September 11th law as it pertains to non-citizens, and comments on what these laws—and their reception in the legal world—say about the constitutional principle of equal protection. He argues that the post-9/11-non-citizen experience casts a negative light on equal protection norms, showing that the notion of equality might not be as important an ideal as it is often claimed to be.
Over the last five years, a carousel of large, international frauds by well-known and well-regarded financiers undermined the integrity of global securities markets and international cooperation in market enforcement. In this Note, Dhesi advocates an expansion of SEC authority to place a substantial hurdle in the way of these conmen in the hopes of stripping them of a primary tool—the use of offshore financial centers (OFCs). To prevent conmen from avoiding SEC jurisdiction and capitalizing on self-interested local regulation in OFCs, Dhesi encourages Congress to grant the Commission the authority to initiate investigations on foreign soil, when the Commission perceives a substantial threat to investors in the United States, with prior consent from foreign regulators.
In this Note, Dolehide explores the differences between American administrative law and that of the United Kingdom and Australia. In American administrative law, courts defer to agencies on questions of law, where judges have expertise, but undertake strict review of policy determinations, where agencies have more expertise. Judges in the United Kingdom and Australia, on the other hand, give no deference to administrative interpretations of law but grant substantial deference on policy decisions. Dolehide suggests that one important factor underlying this dichotomy is that the emergence of the administrative state has generated more significant institutional tensions in the United States than in the parliamentary systems of United Kingdom and Australia. After comparing these distinct systems, Dolehide examines what the comparative analysis suggests about the future of American deference doctrines.
In his Response to Professor Sacharoff’s Article, Professor Gerhardt critiques the use of sources, contending that Professor Sacharoff reads too much into the “antimonarchical premises” of the Constitution and too little into other sources. Gerhardt suggests alternatives to Sacharoff’s reading of the structure and context of the Constitution, as well as precedents and analogies that might inform our judgment about the extent to which former presidents might or should have any control over executive privilege.
In her Response to Professor Tidmarsh’s Article articulating the “do no harm” principle, Professor Burch explores Tidmarsh’s theory from a procedural legitimacy perspective. She considers the assumption that in any given class action both attorneys and class representatives tend to act as self-interested homo economicus. She argues that (1) tailoring adequacy to egocentric behavior by providing a floor to minimally acceptable conduct creates a troubling anchor that is at odds with agency and ethical principles; and (2) this proposed change, particularly as it tolerates collusion and unequal treatment among class members, may adversely impact perceptions of procedural justice and class-action legitimacy.
