How Lochner Became Disembedded: Legal Anxieties in a Global Context, or: Law s Changing DNA
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1 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
2 Hard Cases Make Bad Law I 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 )
3 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...
4 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
5 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.
6 Hard Cases Make Bad Law, or do they? Issues/interests pitted against each other: LOCHNER: S&P: Employees v Employer Court v Legislator Market v State CRA v Buyer/Investor Private party v public/private party
7 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?)
8 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
9 Contextualising Case Law I Transnational Lift-off and National Touchdown (R.Wai) But, what is the national framework today?
10 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
11 Proposal I: Contextualising Case Law III Contextualize through Translation Categories 1. Actors (from state to... intl specialized orgs, regimes, NGOs, private organizations) 2. Norms (from laws to... regulations, codes, recommendations, experts & cases suggesting regulatory frameworks) 3. Processes (jurisprudence, policy coordination, report drafting, legislature)
12 Proposal II: Contextualising Case Law III 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?
13 From cases & laws to transnational 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
14 From cases & laws to transnational regulatory governance Norms: - Ratings - Indirect and direct identification of targets of regulation Processes: - Indirect market regulation - Governance by Disclosure / Information
15 From cases & laws to transnational regulatory governance Disclosure and Information Specific to rated entities: Countries Financial Institutions How specific?
16 From cases & laws to transnational 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?
17 From cases & laws to transnational regulatory governance Who defines and occupies the context? Who has agency? Where are the fora to theorize and contest agency?
18 From cases & laws to transnational 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
19 From cases & laws to transnational 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.
20 From cases & laws to transnational 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.
21 From cases & laws to transnational regulatory governance Is this what Justice Harlan dreamed of?
22 Law s changing DNA NATIONAL LAW GLOBAL UN, WTO, IMF ICC Emerging quasipolitical, quasipublic entities NGOs CRAs
23 Law s changing DNA NATIONAL GLOBAL LAW Hierarchy of Norms Legal Stability Rule of Law Constitutional Order Separation of Powers UN, WTO, IMF ICC Emerging quasipolitical, quasipublic entities NGOs CRAs
24 Law s changing DNA NATIONAL GLOBAL LAW Hierarchy of Norms Legal Stability Rule of Law Constitutional Order Separation of Powers UN, WTO, IMF ICC Emerging quasipolitical, quasipublic entities NGOs CRAs Non-Law Legal Realism (functionalism) Deconstructivism Consumer law Public-Private Distinction Critique Non-law vs. Not-yet law Legal Pluralism
25 Law s changing DNA NATIONAL GLOBAL LAW Hierarchy of Norms Legal Stability Rule of Law Constitutional Order Separation of Powers UN, WTO, IMF ICC Emerging quasipolitical, quasipublic entities NGOs CRAs Non-LAW Legal Realism (functionalism) Deconstructivism Consumer law Public-Private Distinction Critique Non-law vs. Not-yet law Legal Pluralism Global Civil Society Deliberation (cosmopolitanism) Groups, movements ( law from below ) Global Admin Law Transnational Labor Citizenship inclusion/exclusion
26 Law s changing DNA LAW Non-LAW NATIONAL GLOBAL Hierarchy of Norms Legal Stability Rule of Law Constitutional Order Separation of Powers Transnational Legal Pluralism UN, WTO, IMF ICC Emerging quasipolitical, quasipublic entities NGOs CRAs Legal Realism (functionalism) Deconstructivism Consumer law Public-Private Distinction Critique Non-law vs. Not-yet law Legal Pluralism Global Civil Society Deliberation (cosmopolitanism) Groups, movements ( law from below ) Global Admin Law Transnational Labor Citizenship inclusion/exclusion
27 Law s changing DNA T R A N S N A T I O N A L Hierarchy of Norms Legal Stability Rule of Law Constitutional Order Separation of Powers UN, WTO, IMF ICC Emerging quasipolitical, quasipublic entities NGOs CRAs LAW LAW Transnational Legal Pluralism WSF Legal Realism (functionalism) Deconstructivism Consumer law Public-Private Distinction Critique Non-law vs. Not-yet law Legal Pluralism Global Civil Society Deliberation (cosmopolitanism) Groups, movements ( law from below ) Global Admin Law Transnational Labor Citizenship inclusion/exclusion
28 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-nonstate norm making in a Global Knowledge Society
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