April 16, 2014
icon How Burdensome Is New Financial Regulation?
Posted by David Zaring

JPMorgan reported on how many people are required to do new regulatory compliance work.  Let's outsource to this take:

  • "That one million hours a year devoted to resolution planning is 500 full-time employees"
  • "There are 8,000 employees 'dedicated solely to building and maintaining an industry-leading Anti-Money Laundering (AML) program.' JPMorgan employs more AML compliance officers than the Treasury and the Fed combined."
  • Stress testing required 500+ FTEs
  • Compliance with Basel's new securitization rules has required 35,000 hours of work (at 2000 hours per year, that's only 17.5 FTEs, so you can see why they moved to hours there).

That's a lot of compliance, and indeed, at these rates, way more people do compliance for JPMorgan than, probably, do actual investment banking.  Of course, maybe we want all of this given that the firm is far too big to fail, and maybe we want to make banking burdensome and unprofitable.  If so, we are on our way!

Permalink | Administrative Law, Finance, Financial Crisis, Financial Institutions | Comments (View) | TrackBack (0) | Bookmark

April 15, 2014
icon Goodbye Conflict Minerals Rule
Posted by David Zaring

The DC Circuit rather shockingly threw out the SEC's conflict minerals rule ONLY because it compelled publicly traded companies to speak about the issue in their securities filings, which it concluded violated the First Amendment.  EDIT: This means that the parts of the rule that require reporting but not a statement that goods are "not DRC conflict free," might still be okay.  Bainbridge has takes here and here, Jonathan Adler here, Matt Levine here.  

But, you are thinking, the SEC compels companies to do a million things in their securities filings!  Does the very existence of a disclosure regime violate the First Amendment?  The court's novel theory was that it is okay to mandate disclosures that aim to prevent consumer deception (so the books of publicly traded companies could be opened to investors), but any other goal must have more than a rational basis to be sustainable.

It is a crazy theory.  Warning labels, origin labels, nutrition labels, mandatory agricultural marketing schemes, they don't involve consumer deception, and they're okay.  And maybe this reveals a lack of adoration for the First Amendment, but if Congress could prohibit companies from using conflict minerals, which it surely can, then requiring them instead to disclose the use is both less burdensome and possibly more efficient.  Why would we want a legal system that does not permit disclosure regimes, thereby requiring command and control?

Some other observations:

  • One judge wanted the court to wait for a ruling in a related case going en banc before the now democratically controlled circuit, and the two majority judges declined to do so because now the SEC and the petitioners could participate in the en banc.  Unless the new Obama judges on the court cannot hear the en banc, this seems like a request for a quick reversal.
  • Also interesting, the court didn't bullet proof the opinion.  The SEC survived the adlaw challenges, and the very controversial cost-benefit analysis requirement the DC Circuit has started imposing, though that is likely to change very soon, on the agency.  There is only one ground for reversal here: disclosure is unconstitutional.
  • There is a difference between speech and conduct in the First Amendment, but the other big thing the SEC does in foreign policy is corrupt practices prosecutions (bribes paid to foreign government officials, that is).  Could that be affected by the holding of this opinion, were it to stand?  It sure isn't consumer protection.
  • One of my many pet theories about why people care about constitutional law, though they often overdo it, is the sense that stare decisis is only sort of a good way to think about the subject.  Conservative judges clearly love commercial speech, and have been using it to reverse some settled doctrines that have been in place for decades.  I doubt a single securities lawyer thought that this was a plausible holding by the Court.  Some smarter on the subject than I were clearly surprised.  Let's see if it lasts.

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April 12, 2014
icon One Love, One Law
Posted by Usha Rodrigues

I really enjoyed this conference! One of the best parts about it was that it threw together people who think quite differently about corporate law. One of the great things about Steve Bainbridge is his openness to critics and his genuine desire to engage in a conversation with opposing viewpoints. Most people just want to hear that they're right. Steve doesn't, and that's a rare thing in this business.

As is often the case, as the panels unfolded a thought kept percolating in my mind and never made it to a question. Luckily, I'm a blogger, so I can keep talking!

In the first panel proponents of the director primacy, shareholder primacy, and team production model made their case. The next panel critiqued them, and yours truly was tasked with Steve Bainbridge's director primacy. One concern I voiced about both team production and director primacy it that they don't map on to closely held corporations particularly well. Both Blair & Stout and Bainbridge generally concede this point, focusing on public corporations.

But whenever Steve starts his director primacy riff, he says that he set out to explain the Delaware code as it is. And the Delaware code, as I remind my BA students when we move to the close corporation setting, doesn't consist of a "public corporation" law and a "private corporation" law. It's just corporate law--with the weird and relatively seldom used statutory close corporation provisions thrown in. So if you start with the code you have to deal with that basic point--it's the same code for private and public corporations--shouldn't your explanatory theory explain both?

The next panel talked about implications for corporate purpose, and we got to talk hot-button Supreme Court cases. Margaret Blair said something I'd been thinking for a while. Part of what bollixes up the Court is this same one-size-fits-all corporate form. Hobby Lobby is a big corporation, but it's a private corporation. The Justices talk about a little kosher or halal slaughterhouse which we all know is different from a large publicly traded corporation. Yet it's the same form and the same law. Why? I suggest to my students that it's because states, most pointedly Delaware, find more value in a large bank of corporate law precedents than in having categories of corporations to which different laws apply. That is, if Delaware is marketing its rich corporate case law as part of its competition for corporate charters, it's not going to want to divide up its precedents into close corporation law versus public corporation law. Divide and suffer, precedentially speaking. But this "one law" approach causes problems because we know, intuitively and as a matter of reality, that public and private corporations are different.

Citizens United is even more problematic, because there you do have a different code, and actually a different organizational form--the nonprofit. As I wrote in Entity and Identity, form matters. A nonprofit corporation is quite different from a for-profit one, and according a non-profit certain speech rights doesn't necessitate the same for a for-profit.

These nuances get elided, though, if you lump everything together as a "corporation." And, of course, the corporate codes--Delaware and the Model Act--are guilty of that on the public/close corp front, if not on the for/nonprofit one.

"Let's get together and feel all right" is a great plan for a conference (thanks again, Steve!), but does it work as well for corporate law?

Permalink | Conferences, Corporate Governance, Corporate Law | Comments (View) | TrackBack (0) | Bookmark

April 11, 2014
icon Me, Reviewing A Panel On The Human Rights Obligations of Businesses
Posted by David Zaring

I took a look at a panel at the American Society of International Law and wrote up some thoughts in an ASIL Cable.  A taste:

The [UN Guiding] Principles [on Business and Human Rights] are an achievement and an agenda setter, but the text – that “states must protect against human rights abuse within their territory and/or jurisdiction by third parties, including business enterprises,” and that “business enterprises should respect human rights” – is hardly specific.  And indeed, if a theme was running through the views of the panelists, it was that the guiding principles achieved progress as part of a palette of incentives.  These could induce businesses to think about, say, resettlement practices where large public works and mineral extraction projects were being pursued, worker and other protections could be built into supply contracts to ensure that the groups most affected by large investments should be able to profit from those investments. 

Do give it a look.

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icon A Conference and Micro-Symposium on Competing Theories of Corporate Governance
Posted by Usha Rodrigues

Today I excited to be flying cross-country to attend a Conference and Micro-Symposium on Competing Theories of Corporate Governance at UCLA Law, organized my my friend and Friend of Glom Professor Steve Bainbridge. 

A "micro-symposium," for those not in the know, means that you write 750 words on the subject at hand.  Which was a challenge, but also a lot of fun.

Looking forward to a great conversation about shareholder primacy, director primacy, and team production! 

 

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April 09, 2014
icon Family Film Blogging: Captain America: The Winter Soldier
Posted by Christine Hurt

I love the Marvel superheroes.  And my favorite superhero is Captain America.  So, our family was in a sold-out IMAX theater on Friday night for Captain America:  The Winter Soldier.  Earlier that day, I had purchased a certain someone the winter soldier action figure at the Disney store.  This actually caused some problems in our household because the box names the winter soldier as Bucky Barnes.  My daughter looked at me like I just told her there was no Santa Clause.  "The winter soldier is Bucky!?"  So, sorry for the spoiler.

The plot of this sequel is fairly hard to describe without giving away more than the identity of Bucky.  Suffice it to say that in the first part of the movie we find out that S.H.I.E.L.D. has been compromised.  Captain America has to figure out who is not corrupt, who he can trust.  Then, they will have to save the world from the enemy.  Black Widow plays a very large part in the movie (foreshadowing her own movie?), and a new superhero is introduced, Falcon.  Robert Redford appears as Alexander Pierce, S.H.I.E.L.D. agent and leader of "the council" that gives Nick Fury orders regarding S.H.I.E.L.D.  My favorite part was when Pierce opens his super-fancy refrigerator, with a glimpse of Newman's Own pasta sauce.  (I'm sure lots of zillionaires keep leftover pasta sauce in their fridge, but whatever.)

The bad guys (who shall not be named here) have a secret weapon, Bucky, who also has some of whatever makes Captain America so super.  He may even have a little more.  Bucky has no memory of who he was at all.  In a way, this movie taps into the angst of returning U.S. soldiers from Iraq and Afghanistan -- Falcon runs a support group for vets having trouble assimilating back into civilian life, and he empathizes with Steve Rogers, who is having trouble assimilating after returning from a war seventy years ago to a time and place that is foreign to him.  Not to give it away, but Steve's only soulmate is 96.  Bucky is an extreme version -- told by the bad guys that he is a soldier making the world better for humanity, but who is being used and exploited for the bad guys' own ends.  (Remember, one of the big plot points for Iron Man 3 was that Tony Stark has PTSD from his battle with Loki's alien army.)

The biggest hole in this movie, just like in Iron Man 3, is WHY DOESN'T CAPTAIN AMERICA CALL THE OTHER AVENGERS?  If the fate of the world is really hanging in the balance, and you have three friends with whom you've saved the world before, why wouldn't you call them?  At least call Tony Stark.  From a plot point of view, the absence of the other Avengers in these sequel is unbelievable.  From an actor contract perspective, it makes sense.  Robert Downey, Jr. has fulfilled his contracts.  That is a negotiation for done the line.  Also, once you start calling in help, the sequel just becomes Avengers2.  But back in the world where millions of people are about to die, it seems weird that Captain America doesn't ask Black Widow what Iron Man is doing for the next few days.

Still, it's an awesome movie.

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icon What Does The Supplementary Leverage Ratio Rule Mean For Your Deposits?
Posted by David Zaring

The leverage rule agreed to internationally is 3%, and you should think of a it as an alternative minimum tax.  Worried that banks might be able to game capital requirements, which require them to hold funds in reserve to deal with shocks, the world's regulators also decided to forbid, on pain of cutting dividends and executive compensation, large banks froms from taking positions that would mean that more than 3% of their assets are capital.  American banking regulators are going further - they are disincentivizing bigness by requiring the 8 largest banks to comply with a 5% leverage ratio.  Some thoughts:

  • The giveback to industry is that this rule isn't effective until 2018.  Only in financial regulation do you ever see such long-dated rules.
  • American banks might have to add $68 billion in capital to comply with this requirement.  Would you sue to avoid that kind of a charge?  Of course you would!  But the banks probably won't.  The Fed just doesn't face the sort of Total Litigation regulatory contest that the SEC faces.
  • Ditto, you'd think that such a big deal rule would require review by OIRA.  Nope!

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April 04, 2014
icon FOMO: Just Say No
Posted by Usha Rodrigues

Haskell Murray and Anne Tucker recently blogged quite engagingly about their Fear of Missing Out (FOMO).  They made me feel old--not only because of these newfangled acronyms, but also because I remember feeling that way myself.  I found particularly brave their articulation of the suspicion that they weren't "good enough" and had somehow lucked into the job.  I remember feeling that way, too, and I have a sneaking suspicion that there are 2 kinds of junior faculty members: 1) those who think they're not really as smart as everyone else, and 2) those who really aren't as smart as everyone else.  "Arrogance" is just a few letters away from "ignorance." 

But I digress.  I remember feeling this way, and I had a mentor give me excellent advice my first year:

Just say no. 

At least, your default answer should be "no."  To my chagrin, I realized something at the end of my first year of teaching: This job has infinite demands. There are 3 elements to it: teaching, scholarship, and service.  You could devote every waking moment to your teaching, and still have more you could do.  Ditto for service.  Ditto to the nth degree for scholarship: always another talk you could attend, an article you could read.  But you can't do those things and write.  At least, I can't.  You have to get used to always feeling like there's more you can do.  You'll feel guilt, but you have to make your peace with it.

I set boundaries for myself, like trying not to travel more than once a month while classes are in session.  But the best piece of advice I got was that your default answer should be "no."

P.S. Haskell, I'd love for people to think that I'm some kind of superwoman, but that was my schedule for a brief period of my life.  Baby #3 started sleeping through the night at about 6 months.  Hallelujah!

Permalink | Law Schools/Lawyering, Legal Scholarship, Productivity, Wisdom and Virtue | Comments (View) | TrackBack (0) | Bookmark

icon Will The Leverage Rule Kill Monetary Policy?
Posted by David Zaring

The answer is no, it won't kill monetary policy, but here's the way it might constrain the Fed, which relies on primary dealers (that is, big banks, who would now be subject to leverage requirements) to help it set the federal funds rate.  This reliance has been cited as a reason to delay the leverage rule.  Felix Salmon also thinks that's no reason to delay the imposition of the rule, but here's how the argument works, in his nicely straightforward words:

The way that the Fed conducts monetary policy is by instructing the traders at the New York Fed to buy and sell certain financial instruments so that a particular interest rate — the Fed funds rate — is very close to a certain target. Through a complex series of financial interlinkages, setting the Fed funds rate at a certain level then has a knock-on effect, and ultimately helps determine every interest rate in America, from the Treasury yield curve to the amount you pay for your credit card or your mortgage.

Those interlinkages are so complex that they’re impossible to model with any particular accuracy: all the Fed can do, really, is set the Fed funds rate and then see what happens to everything else. And directionally the causality is clear: if the Fed wants rates to rise, then it pushes the Fed funds rate upwards, and if it wants rates to fall, then it brings the Fed funds rate down. That doesn’t always work at the distant end of the yield curve, but it’s still most of what monetary policy can do.

Especially early on in the chain, a lot of the interlinkages take place at the level of big banks. And so it stands to reason that if you change the leverage requirements of big banks, that might change what happens to interest rates when you move the Fed funds rate. 

Permalink | Administrative Law, Finance, Financial Institutions | Comments (View) | TrackBack (0) | Bookmark

April 02, 2014
icon Family Film Blogging: Muppets Most Wanted
Posted by Christine Hurt

I like the muppets.  I liked The Muppets.  But I can't say that I am dying to see Muppets Most Wanted again.  Yes, there were parts where I laughed out loud, but I do that a lot.  

As probably ever reviewer has noted, the opening song (which is not memorable except for this line), pretty much tells you how the next 90 minutes is going to go:

We're doing a sequel, We're back a popular demand.
C'mon on everybody, strike up the band.
We're doing a sequel; That's what we do in Hollywood.
And everybody knows, the sequel's never quite as good

Except for Toy Story 2, but this is not TS2.  The movie begins literally at the moment that The Muppets ended.  We see the backsides of the stand-ins for Gary (Jason Segal) and Mary (Amy Adams), who walk away and are never mentioned again.  The rest of the Muppets characters (including Walter, from the first movie) then try to think of what they should do in the sequel (opening number), and decide on the prompting of Dominic Badguy (Ricky Gervais) to do a world tour.  Badguy is secretly working with Constantine, number one criminal mind in the world and dead ringer for Kermit, to use the world tour as a way to pull off various heists, leading to the theft of the crown jewels in London.  To pull this off, Constantine must take Kermit's place, with Kermit being mistaken for Constantine and sent to a Russian gulag, run by Nadya (Tina Fey).  All the best parts of the movie take place in the gulag.

Though I thought the last movie was diminished by the story of Walter, Gary and Mary, here the movie could use a good non-Muppet plot.  Ricky Gervais does not shine in his role.  Whereas Segal and Adams seemed overjoyed to be in a Muppets movie, Gervais seems like someone with the flu showing up for work because he has to do so.  Fey and the gulag cast of characters (Ray Liotta, Daniel Trejo) are definitely worth seeing, including the 15 seconds of Tom Hiddleston (Loki from Thor).  The other human narrative is Ty Burrell, playing an Interpol agent working with muppet Eagle, a CIA agent.  Immediately after the "badge" scene from the trailer, this bit begins to grate.  The jokes all center around how the Interpol agent is European, so he has six hour lunch breaks, two months' summer vacation, etc.  Yeah, the kids didn't really get that.  Burrell also goes through the movie sounding like the French "taunter" from Monty Python and the Holy Grail with the "outrageous French accent."

The plot within the Muppets is pretty thin, unlike the "getting the band back together" plot of the earlier movie.  Here, the other muppets are just putting on the show, with a "new and improved' Kermit who lets them do whatever they want.  Walter, who barely appears in the first half of the movie, puts together that Kermit and Constantine have been switched. With Animal and Fozzie (also minimally used in this movie), he breaks Kermit out of the gulag.  The other thing that is missing from the movie is catchy songs.  We downloaded the soundtrack of the earlier movie pretty quickly, and loved the songs.  Here, I couldn't hum any song in the movie five minutes after it was over.  I will say that the best part of The Muppets was the "Am I a Man (Or Am I a Muppet)" song, in which Jim Parsons (Sheldon from Big Bang Theory) appears as Walter's parallel human.  This movie tried to do the same thing with Miss Piggy and Celine Dion, and it was dumb.  Really dumb.

I hate being so negative, mostly because the six year-old did enjoy it, but I won't put it on my 2014 highlight reel.

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icon Andrew Gold on "Philosophical Foundations of Fiduciary Law"
Posted by Gordon Smith

The following comes to us from Andrew Gold of DePaul University College of Law:

First, Paul Miller and I want to thank Gordon for the opportunity to post on Conglomerate! We are editors of a new collection of essays, Philosophical Foundations of Fiduciary Law, that will be published later this year by Oxford University Press – and we are very grateful for the chance to share some details about the volume.  The book has an outstanding group of contributors, and the chapters span a wide variety of fiduciary topics and methodologies.

Fiduciary law is still an underdeveloped field in private law theory.  Yet fiduciary law is very important to a wide variety of subjects, from corporate law, to lawyer-client and doctor-patient relationships, to parent-child relationships, to political theory.  This new volume should fill a major gap in the literature.  We thought it might be helpful to provide some links to the drafts now available on ssrn.

A series of chapters focus on fiduciary relationships and the core duties associated with those relationships.  For example, Paul Miller provides a new account of fiduciary relationships and their nature.  From a Kantian perspective, Irit Samet considers whether fiduciary loyalty is a virtue.  She suggests that it can be.  Lionel Smith considers whether there is a fiduciary duty of loyalty; he concludes that there is not. In my own chapter, I inquire into the core minimum content of fiduciary loyalty.  In addition to these topics, the book will also include new work on the duty of candor.

Several authors assess fiduciary law from an economic perspective.  Examples include Robert Sitkoff’s chapter, which provides an economic theory of fiduciary law in general.  Among other things, Sitkoff explains how fiduciary law’s mandatory terms can be squared with efficiency values.  In addition, Henry Smith offers a functional account of the link between fiduciary law and equity.  Further chapters on the significance of economic analysis will be included in the volume.

Other contributions discuss particular types of fiduciary relationship.  For example, Deborah DeMott offers a new account of the interpretation of instructions in agency law.  Hanoch Dagan and Sharon Hannes assess financial fiduciaries as a distinctive private law institution.  Avihay Dorfman provides an innovative theory of the trust relationship, trust law fiduciary duties, and their connection to ownership.  And Martin Gelter and Genevieve Helleringer offer a distinctive account of constituency directors’ fiduciary duties in corporate law.

On the public law side, Evan Fox-Decent provides a new account of fiduciary authority, drawing on the work of Joseph Raz and others on the authority of the state.  Ethan Leib, David Ponet, and Michael Serota consider how public fiduciaries should be defined, and, relatedly, which parties should properly be understood as their beneficiaries. Finally, Evan Criddle considers the relation between fiduciary principles and international law, focusing on the relevance of fiduciary principles to state sovereignty and international institutions.

Additional contributions have been authored by Richard Brooks, Justice James Edelman, Tamar Frankel, Joshua Getzler, Michele Graziadei, Daniel Markovits, and James Penner.  Each offers insightful new theoretical perspectives on fiduciary law.

Paul and I hope that this volume – and other recent work in the field – will encourage more scholarship on fiduciary law topics.  Together with Gordon, and with Evan Criddle, we have also put together some panels on fiduciary law at the upcoming Law & Society conference.  We are very excited about this new volume, and we look forward to future discussion! 

Permalink | Fiduciary Duties | Comments (View) | TrackBack (0) | Bookmark

April 01, 2014
icon University of Chicago Announces New Curriculum Changes
Posted by Christine Hurt

Looking to the future of legal education and the legal services industry, the University of Chicago announced today a radical new curriculum that respond to claims that law school is too expensive, too long, and irrelevant to the delivery of legal services.  These changes will go into effect beginning with the incoming class of 2014-15.

A new orientation day will replace earlier attempts at "welcome to law school" programs.  New legal careers will begin on Day One.  On this day, students will be given a type of aptitude test that will tell students in which broad legal field they may thrive in and in which they are most likely to find satisfaction.  The results of these tests are confidential and not mandatory, students will be able to choose the next day which field of study they will enter; however, this choice is irreversible.  

Chicago has announced five fields of legal study, which will be organized into "factions":  Abnegation, which will focus on public interest work and "street law;" Amity, which will focus on dispute resolution; Erudite, which will focus on the most cerebral of legal work, corporate, securities and tax law; Candor, which will focus on governmental agency work; and Dauntless, which will focus on litigation.  Each field of study will require different lengths of training.  Dauntless training will be completed in three months by zip-lining from the Sears Tower through downtown Chicago.  Erudite training will take six years and take place exclusively indoors.

However, should a student drop out or be counseled out of training, the student will be "factionless," or in other words be unable to sit for the bar unless a law school beyond the fence is willing to retrain the student. 

The law school acknowledges that some educators (and parents) believe that some students may have skills or talents that could serve them well in different factions; however, this gifted "divergent" student is more myth than reality, according to experts.

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March 29, 2014
icon Concluding our Hobby Lobby Symposium
Posted by Gordon Smith

Many thanks to all of those who participated in our symposium on Sebelius v. Hobby Lobby Stores, Inc. (and its companion cases). You can find all of the posts assembled in one place.

Some of our readers have contacted me with praise for the contributors, not merely for their insights, but also for their professionalism. We look forward to more such interactions on the Glom.

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icon Family Film Blogging Divergent
Posted by Christine Hurt

I did not want to interrupt our awesome forum on Hobby Lobby with my pedestrian mommy movie reviews, but here goes:

Opening night for Divergent found me and another lucky mom sitting with four sixth-grade boys (and three girls who pretended to be annoyed that we ran into them) in the IMAX.  Yes, we had all read the book.  (Though, after devoting too much of my life to both the Twilight series and the Catching Fire series, I stopped at the first, which is usually the best.)  And, of course, we are two hours south of pre-dystopian Chicago.

Beatrice/Tris is our heroine in our dystopian future Chicago.  Though she was raised in the selfless Abnegation faction, she chooses on the appointed choosing day to join the Dauntless faction, which favors crazy bravery in order to be the security force of the city.  Her brother chooses Erudite, which is the faction for academic research/think tank sort of things.  As you might expect, trying to join Dauntless is a harrowing experience, with the prospect of failure and being "factionless" a harsh, but real possibility.  Tris, of course, falls in love with her trainer, Four, because movies with young, female heroes seem to be required to have as a "sub"plot "who is going to be my boyfriend?"

So, many reviews are not very favorable, including the Manohla Dargis one in which the reviewer seems to be puzzled by the magic of mascara.  But I will say that my low expectations aside, I was pleasantly surprised.  No, it's not Harry Potter, and who knows when that will roll around again, but it is completely enjoyable.  And yes, it seems a little derivative of Catching Fire, which features another teenage girl with a secret courageous streak that comes in handy when she has to save the world.  I would argue that it's not as violent as Catching Fire (and less violent than the book), though that may not be saying much.  Many fans have noted that the ending is different, but I actually liked the movie ending better.  My only quibble is that the end of the movie, with plenty of monologuing by Kate Winslet, makes the tension seem more like the Erudite and Dauntless factions v. Abnegation faction, when in the book it seemed more like a few power-hungry Erudite exploiting the Dauntless to grab power with the Abnegation conspiracy charges as obvious ruse.

FYI, all the boys liked the movie.  They also liked the book.  None of them ever mentioned that the main character was a girl.  In case you didn't see this, In Praise of Joanne Rowling's Hermione Granger Series.

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icon Persons, Burdens, and Interests -- A Quick and Dirty Response to Jayne
Posted by Nate Oman

In her last post my colleague Jayne Barnard asks some great questions.  Let me take a stab at some answers.  Jayne writes:

[I]s there a difference between businesses like these where religion is at the core of what they do, and other businesses where religion has little if anything to do with the company's products and services?  Must the Court rule that any corporation with 51% religious owners can claim that it is engaged in religious exercise?   Won't that lead to even more mischief?

Many of those opposed to Hobby Lobby's claim -- including the Obama Administration -- have argued that because Hobby Lobby is a for-profit corporation it cannot be a "person" for purposes of RFRA.  As a matter of statutory interpretation, I find this claim implausible.  I also think that it's a misguided way of dealing with the concerns that one might have about Hobby Lobby's claims.

At the end of the day, I suspect that opposition to Hobby Lobby is less nuanced than much of this debate suggests.  Those who are skeptical of their suit think that the ACA contraception mandate is really important, and that letting a bunch of religious zealots avoid their obligations under the ACA will hurt women and that would be really bad.  This argument has nothing to do with the definition of "person" under RFRA.  Rather, it amounts to the claim that in the ACA the government is pursuing a compelling interest.  Furthermore, dealing with this concern -- compelling government interests -- through the definition of "person" is probably not possible.  You'd need to come up with a defintion of "person" such that only persons asserting religious freedom claims that would never conflict with a compelling government interest would be covered.  I suspect that it's impossible to come up with such a definition.  (Perhaps a rule that only moderate Episcopalians or conservative Unitarians are "persons" under RFRA?)

Alternatively, I think that critics of Hobby Lobby just don't think that their religious exercise is really being burdened.  This isn't a church!  It's a for profit business!  Notice that again in this intuition we are trying to make the definition of "person" do work that is already being done elsewhere in the statute.  To make out a RFRA claim you have to show that there is a "substantial burden" on religious exercise.  Again, one could imagine drafting a definition of person such that the only folks that would qualify would be folks whose religion would be substantially burdened by challenged regulation.  Again, I doubt that it's possible to draft a definition of "person" that would do this well.  Especially if the same definition has to weed out cases with compelling government interests.  (Maybe we say that "person" includes only ultra Orthodox Jews whose lives are pervasively structured by detailed religious rules but can't include lapsed Methodists?)

So my answer to Jayne is, "Yes, the Court must rule that any for-profit corporation can claim to exercise religion."  In other words, yes any for-profit corporation is a "person" for purposes of RFRA.  The fact that any for-profit corporation can now claim to be exercising religion does not mean that it in fact is exercising religion.  If General Electric suddenly claims that it has religious objections to the securities laws that simply isn't the same thing as a Kosher butcher claiming religious objections to health codes that cannot be squared with kashrut.  They are both "persons" under RFRA.  One, I take it, has a good claim that their religious exercise is substantially burdened and one does not.

Creating a very broad definition of person means that you are going to have to weed out pretextual religious claims from good faith claims, substantial burdens from de minimis burdens, and compelling government interests from non-compelling government interests.  But we already have to do all of these things under RFRA when it comes to natural persons.  Courts reject RFRA claims that are pretextual or challenge law placing only de minimis burdens.  At times they find that there is a compelling government interest.  They do this without manipulating the definition of "person" to avoid the issue.

I understand if you think that the ACA mandate fufills a compelling government interest.  I get it if you don't think it substantially burdens Hobby Lobby's exercise of religion.  (I have my own doubts on that point.)  I don't think, however, that has anything to do with the definition of persons under RFRA.

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