How lochner became disembedded legal anxieties in a global context or law s changing dna
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How Lochner Became Disembedded: Legal Anxieties in a Global Context, or: Law’s Changing DNA. ROMA TRE Superior Graduate School Seminario Diritto Globale 27 February 2014 Professor Peer Zumbansen Osgoode Hall Law School / Yale Law School. Hard Cases Make Bad LawI. Illustration 1:

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How Lochner Became Disembedded: Legal Anxieties in a Global Context, or: Law’s Changing DNA

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How lochner became disembedded legal anxieties in a global context or law s changing dna

How Lochner Became Disembedded: Legal Anxieties in a Global Context,or: Law’s Changing DNA

ROMA TRE

Superior Graduate School

Seminario Diritto Globale

27 February 2014

Professor Peer Zumbansen

Osgoode Hall Law School / Yale Law School


Hard cases make bad law i

Hard Cases Make Bad LawI

Illustration 1:

Lochner v. New York (US Supreme Court, 1905)

At issue: maximum working hours at bakery

Background: State legislature caps hours, plaintiff claims violation of constitutional rights (‚freedom of contract‘)


Lochner s always contested legacy

Lochner‘s (always) contested legacy

Majority opinion: strikes down law with reference to constitutional rights of contracting parties

Dissent (Justice Holmes): no such constitutional protection of economic freedom

Dissent (Justice Harlan): issue not domestication of economic warfare, but safety at work: deferral to SepPowers & Knowledge

Legacy: Lochner is THE economic laissez faire decision, which will only be reversed during New Deal Era of progressive market regulation. In 1990s, early 2000s, Lochner re-emerges as ‘good‘ law...


Hard cases make bad law ii

Hard Cases Make Bad Law II

Illustration 2:

Australian Federal Court convicts S&P for fraud (Nov. 2012)

Issue: AAA Rating for financial instruments, issued in 2006

S&P: Less than 1% chance to default...W/in 6mo lost 90%

Decision: Triple A rating for “grotesquely complicated“ instrument should not have been given by “reasonably competent“ rating agency.

Rating was “misleading and deceptive“

Assessment / Consequences?

  • “big blow to rating agencies“/“potentially groundbreaking“

  • “Landmark ruling“


Hard cases make bad law or do they

Hard Cases Make Bad Law, or do they?

But, are Lochner and S&P ‘hard cases‘?

  • Cases with a specific grip on their time

  • Economic freedom and economic/financial regulation in a contentious, intertwined relation

  • As ‘hard cases‘, they make bad law, as they freeze our imagination within specific boundaries and categories.


Hard cases make bad law or do they1

Hard Cases Make Bad Law, or do they?

Issues/interests pitted against each other:

LOCHNER:Employees v Employer

Court v Legislator

Market v State

S&P:CRA v Buyer/Investor

Private party v public/private party


Hard cases make bad law or do they2

Hard Cases Make Bad Law, or do they?

Poles:

LOCHNER: Opposed views on state-market relations, regulation of freedom and the role of the state (public v private interests?)

S&P:Market analyst v investors (private interests?)


Bad law in which context

Bad Law in which context?

At issue, really:

Actors‘ positionings in a changing landscape

From....national regulatory systems, identifiable political positions, different options available for political market “interventions“

To....overlapping public/private, national/global regimes, broken legitimacy chains, competing competences and interest representations


Contextualising case law i

Contextualising Case Law I

Transnational Lift-off and National Touchdown (R.Wai)

But, what is the national framework today?


Contextualising case law ii

Contextualising Case Law II

Context of transnational legal regulation today

National

European

……………………..…Transnational

Public

Private

………………………..Hybrid

Hard

Soft

....................................Pluralist / Regulatory / “Governance“

Rules

Principles

....................................Direct & Indirect Approaches


Contextualising case law iii

Contextualising Case Law III

Proposal I:

Contextualize through ‘Translation Categories‘

  • Actors (from “state“ to .... intl specialized orgs, regimes, NGOs, private organizations)

  • Norms (from „“laws“ to .... regulations, codes, recommendations, experts & cases suggesting regulatory frameworks)

  • Processes (jurisprudence, policy coordination, report drafting, legislature)


Contextualising case law iii1

Contextualising Case Law III

Proposal II:

Theorize societal conflicts as ‘case studies‘

Questions to build case studies as laboratories of transnational regulatory governance:

1. Before the Australian decision, what is the “case“ arising from CRAs‘ activities (eg after downgrading of US, grading allocation to risky financial instruments issued to private and public investors)

2. Which interests are pitted against each other? What is at stake?

3. Who are the actors and what is their status? Which functions / responsibilities do they assume?


From cases laws to transnational regulatory governance

From cases & laws totransnational regulatory governance

ACTORS

CRAs as “de facto market“ regulators

CRAs are relied upon by public regulators eg, - - when determining capital adequacy requirements for financial institutions

- when determining disclosure requirements

Interim Result:

  • increasing outsourcing of regulatory functions to CRAs

  • making credit ratings essential for issuers and cornerstone of regulations


From cases laws to transnational regulatory governance1

From cases & laws totransnational regulatory governance

Norms:

  • Ratings

  • Indirect and direct identification of targets of regulation

    Processes:

  • Indirect market regulation

  • Governance by Disclosure / Information


From cases laws to transnational regulatory governance2

From cases & laws totransnational regulatory governance

Disclosure and Information

Specific to rated entities:

Countries

Financial Institutions

How specific?


From cases laws to transnational regulatory governance3

From cases & laws totransnational regulatory governance

Status and function are assessed and contested in context:

What is the context?

Globalized markets for goods, services & capital

.... and policy direction setting

Bye, bye to Ruggie‘s “Embedded Liberalism“?


From cases laws to transnational regulatory governance4

From cases & laws totransnational regulatory governance

Who defines and occupies the context?

Who has agency?

Where are the fora to theorize and contest agency?


From cases laws to transnational regulatory governance5

From cases & laws totransnational regulatory governance

Transnational Governance Context and the (Elusive?) Quest for a Political Framework

Complementing analysis of Norms, Actors & Processes: civil society and knowledge brokers:

See, eg, Stiglitz‘ http://policydialogue.org/about/


From cases laws to transnational regulatory governance6

From cases & laws totransnational regulatory governance

“The Initiative for Policy Dialogue works to broaden dialogue and explore trade-offs in development policy by bringing the best ideas in development to policymakers facing globalization’s complex challenges and opportunities. We strive to contribute to a more equitably governed world by democratizing the production and use of knowledge.”


From cases laws to transnational regulatory governance7

From cases & laws totransnational regulatory governance

“The Initiative for Policy Dialogue works to broaden dialogue and explore trade-offs in development policy by bringing the best ideas in development to policymakers facing globalization’s complex challenges and opportunities. We strive to contribute to a more equitably governed world by democratizing the production anduse of knowledge.”


From cases laws to transnational regulatory governance8

From cases & laws totransnational regulatory governance

Is this what Justice Harlan dreamed of?


Law s changing dna

Law‘s changing DNA


Law s changing dna1

Law‘s changing DNA


Law s changing dna2

Law‘s changing DNA


Law s changing dna3

Law‘s changing DNA


Law s changing dna4

Law‘s changing DNA

Transnational Legal Pluralism


Law s changing dna5

Law‘s changing DNA

LAW

T

R

A

N

S

N

A

T

I

O

N

A

L

Transnational Legal Pluralism

WSF


Law s changing dna6

Law‘s changing DNA

The Move to Methodology:

As Law becomes (remains) elusive, its study must incorporate its emergence in context of different, overlapping and intersecting societal processes.

Focus on Actors, Norms, Processes:

Actors: e.g. World Social Forum

Norms: e.g. UN Global Compact

Processes: e.g. Consultation, Code making, Transnational Private Regulatory Governance

Towards: Transnational Law as Methodology of public/private, state-non-state norm making in a Global Knowledge Society


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