Arroz Con Mango

Tangent-gram to my contracts class

Dear Class:

Now that exams are over, you have some time to reflect (and relax).  Some of you probably want to keep on thinking about law, though, which is not a bad thing.  As a bridge from this semester to the next, let me throw out some ideas that are worth getting in your bones because they are a basic part of how lawyers think.  Here I have just chosen two: the concept of “sources” of law and the meaning of the phrase “common law.”  Also, more generally, this blog may be one way to stay in touch now that our contract course is over.

1.      Sources of law

Get in the habit of thinking in terms of “sources” of law.  This means getting that law is organized in a hierarchy in which the ones on the top can trump the ones lower down on the hierarchy.   From “strongest” to “weakest,” this hierarchy includes

·         Federal Constitution (source of judicial review)

·         Federal case law interpreting and applying the Constitution (this and every other source below is subject to judicial review for conformity with the Constitution)

·         Federal statute

·         Federal case law interpreting federal statutes

·         Other federal case law

·         Federal regulations (issued by administrative agencies)

·         Other federal administrative pronouncements

·         State constitution (inferior state sources are subject to judicial review by state judges for conformity with the respective state constitution)

·         State statute

·         State case law

·         English common law

In our contracts course, the only sources that we studied in any detail were state case law and statute (the Uniform Commercial Code).  In civil procedure, you’ll work a lot with federal statute (such as the Federal Rules of Civil Procedure) and different types of federal case law.  In constitutional law, you’ll deal with all of these sources (especially the ones at the top), making conlaw an especially challenging field to organize analytically.  You’ll still encounter plenty of state law issues, but you won’t have another course focused on state law again until you take property.

2.      What does “common law” mean?

This term gets used a lot without being defined well.  It can refer either to a body of rules, a way of making law, or a family of legal systems.

·         Common law versus equity jurisprudence: In what is probably the narrowest sense of the term, the “common law” refers to that body of legal rules that developed before the English Chancery developed.  In England common law and equity were merged in the 19^th century.  In nearly all U.S. states, common law and equity were also merged.

·         Common law versus statute: The “common law” also refers to law made by a judge (by making a decision in a case) rather than law made by a legislature (when it enacts a statute) or by the executive branch (through Executive Order or administrative pronouncement).  Most of what we looked at in contracts was this kind of common law.

·         Common law versus civil law: In this most expansive sense of the phrase, “common law” refers to those legal systems that developed from England, e.g., ours, New Zealand, Australia.  What characterizes common law legal systems is that their judges tend to have the power of judicial review over legislation (the second sense of common law) and that these systems at one point or another had a legal system divided between courts of law and courts of equity (that first sense of common law).

Cheers.

JG

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Rank and the self: making sense of U.S. News and World Report

When I read the Dean’s email about the U.S. News and World Report, I knew that some of you (our students) would be disappointed. Let me give you my perspective.

First, you are right to be disappointed because the College of Law lost rank in the report. What we do to you with the grading curve, U.S. News does to us with the rankings. You had a right to expect that we would maintain our status. The administration dropped the ball. They have admitted as much. You have a moral claim, not a legal one, but a claim nonetheless.
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Posted in Life of the mind | 5 Comments »

Why do we say “gender” when we mean “sex”?

If you are under 40, you may not know the history of the two words or appreciate what is at stake in how we (mis)use the word “gender.”

A little background. Until about twenty years ago, the word “sex” referred to whether a person was male or female. It was a binary system, i.e., admitting only two choices. Correctly, we criticize binaries because often they don’t do justice to just how complex the real world is. In this case, though, the binary did match up with the vast majority of people, since only about 1 in 3,000-5,000 infants is born with physical characteristics that are not clearly male or female.
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Solomon amelioration - quien hace la ley, hace la trampa

Had legal realist Felix Cohen spoken Spanish, his 1935 article in the Columbia Law Review,Transcendental Nonsense and the Functionalist Approach, might have included this phrase. It means - “If you can make law, you can work frauds.” I use it here in reference to what the American Association of Law Schools (“AALS”) calls its “Solomon amelioration” programs.

Some background: The AALS is the learned society to which law schools accredited by the American Bar Association belong.At the end of this month, the AALS will visit the College of Law as part of our application for membership. Since 1990, the AALS has required employers that use a law school’s career services to provide written assurance that they will not discriminate in hiring on the basis of sexual orientation or other protected categories. At first, the AALS prohibited on-campus recruiting by the military because of its formal policy against letting gays or lesbians serve. Congress then enacted the “Solomon Amendments” (modified in 2004) to withhold federal funding from universities whose law schools complied with the nondiscrimination policies of the AALS. In response, a consortium of law schools and professors – the Forum for Academic and Institutional Rights – joined to challenge the Amendment. In Rumsfield v. FAIR Coalition, the Supreme Court found against the law schools and affirmed the constitutionality of the Solomon Amendments, putting member schools of the AALS in a bind. Many universities (although not law schools) depend on federal funding, so the Supreme Court’s decision put law schools in a bind: comply with the AALS’s anti-discrimination policies and deprive the host university of all federal funding or ignore the AALS policy. To get schools out of this bind, the AALS decided long ago to excuse noncompliance by law schools with its nondiscrimination policies, so long as member schools took affirmative steps to “ameliorate” the negative effects on the learning environment – particularly on sexual minority students – that may result from granting on-campus access to an employer who openly engages in de jure discrimination against members of the law student body. The National Association of Legal Professional’s Solomon Amelioration guide lists ways that other laws schools have met their obligations under the AALS.

It’s good that the AALS phrases the standard – “excusing noncompliance” – so as to reaffirm the integrity of the nondiscrimination standard, at least as an aspiration. But it’s enough to make a legal realist out of anyone.

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Sovereign wealth funds

sovereign-wealth-funds1sovereign-wealth-funds

If you read the financial press, you may have come across a relatively new kind of financial firm whose role in our current financial instability remains a question mark: sovereign wealth funds (“SWF”).  These are large, semi-private capital pools funded by countries with budget surpluses, typically from oil and other commodity exports, and used to manage foreign reserves. In their article on Asset Allocation and Risk Management for Sovereign Wealth Funds (Sovereign Wealth Management, 2007), Fred Weinberger and Bennett Golub divide SWFs into two  types: “stabilization” funds and “savings funds.” Stabilization funds promote financial stability in the sponsoring country, in part by putting revenues from major exports into a cookie jar into which a government can dip to manage budget shortfalls.  Savings funds serve the “inter-generational” goal of sharing the benefits of current commodity export revenues (which are not only volatile but may be finite) with future citizens.  While laudable goals, one question is how these stabilization and investment efforts impact the financial system as a whole. 

In one sense, SWF are the sovereign equivalent of off-balance sheet (“OBS”) assets because sovereign can park assets there and deploy them beyond public view.  In private firms, OBS arrangements let a firm avoid the brunt of legal prohibitions – typically contractual ones – keyed to the firm’s balance sheet figures for assets, liabilities, or net worth.  Although the stakes are different, OBS sovereign wealth funds provide a government asset-liability manager some of the same advantages, e.g., flexibility as well as freedom from oversight and public accountability.  In this sense, SWFs give government officials the same “switching options” with respect to liquidity which George Triantis has analyzed in the context of firms in  Financial Slack Policy and the Laws of Secured Transactions, 29 J. Legal Stud. 35, 39, (2005).  Indeed, recession might drive many of these switching option into-the-money as market liquidity for assets dries up, creating investment bargains, including in financial intermediaries.  

National and international authorities are now beginning to demand more information about SWFs, but until more is known about what they invest in, it’s premature to form a judgment.  In the debt seminar this semester, Jeff Ostlie wrote this excellent introdution to sovereign wealth funds.

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In praise of Hyman Minsky

Recent events in the credit markets are encouraging financial academics and regulators to take a fresh look at assumptions about financial stability and the role of market structure in both promoting and reducing stability. Many of these lines of research point back to work done beginning in the 1950s by economist Hyman Minsky. Trained at the Harvard economics department under Joseph Schumpeter, Minsky understood financial instability to be a recurring and fundamental feature of capitalist economies, an argument that he made as part of his re-interpretation of the work of John Maynard Keynes.  Each year, the Levy Economics Institute of Bard College holds a conference on applications of Minsky’s work.  This year’s conference considers the relationship between credit markets and the real economy.

Minsky classified borrowing into three types: hedged, speculative, and Ponzi.  He distinguished between three types based on their impact to the borrower’s liquidity and its need to re-enter the credit market to refinance maturing interest or principal: hedged, speculative, and Ponzi. In a hedged borrowing, the borrower could pay both the interest and principal due on the debt from the cash flow to be produced from investment of the loan proceeds. A “speculative” loan was one whose cash flow results could finance the interest but not the principal due on the borrowing, exposing the borrower to liquidity risk and requiring it to re-enter the market. The cash flow from a Ponzi loan was sufficient to pay neither interest nor principal due on the borrowing. One way to see last summer’s credit crunch is that borrowers could no longer refinance their speculative and Ponzi financing strategies.

One of the important implications of Minsky’s work is that it distinguishes between the liquidity of a borrower – what is known as its funding liquidity – and the market liquidity of the secondary markets in which the borrower’s credit obligations change hands. Part of what happened in the credit market leading up to the summer credit crunch was that funding liquidity of individual firms contracted while the trading liquidity in markets for liabilities issued by those firms took off. It’s not as counterintuitive as it might seem if you understand John Maynard Keynes’ point that trading markets expose a thing’s value to “beauty contests.” These contests expose the value of a corporation’s liabilities to “herd” behavior as investors begin to take their cues from each other about what the liability is worth rather than making their own determination about a liability’s fundamental quality.

Part of the conceptual shift going on now involves distinguishing between different types of liquidity and getting a better handle of liquidity dynamics, both in the firm and in the market. An excellent example of this is a special financial stability report issued last month by the Banque de France on financial liquidity. Another good place to begin to learn about liquidity is the Comptroller of the Currency’s liquidity handbook for national banks.

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“Gay babies!?” Donne-moi a break…

..if you had your druthers…would you rather have a child who was going to be gay or straight?  hmmm…to frame the question in an academic context, I explored the pre-natal preferences of would-be parents for heterosexuality in their children in Irrational Exuberance About Babies: The Taste for Heterosexuality and Its Conspicuous Reproduction.  Next month, I’ll be making a a law and economics argument based on the paper at the University of Chicago’s Olin Program .  I first presented these ideas in a concept map (this may be hard to read because the original poster is 2′ X 3′) at a meeting of the American Association of Law Schools (”AALS”) and then as part of an essay on heterosexual studies.  I then presented the work at the AALS 2006 conference on teaching, as part of a Solomon Amelioration program at DePaul, and in as part of diversity training for Florida judges and judicial staff.    Shannon Gilreath has included it in his casebook on sexual identity and a chapter based on the material is coming out in Michele Goodwin’s Baby Markets, forthcoming from Cambridge Press later this year.

Penny for your thoughts…

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Our colleagues at the University of Havana Law School

I wanted to share some short interviews that I did of law professors and law students at the University of Havana Law School on my last trip there. Professional they’re not, because I was learning how to use my digital camera, but next time they will be more professional.

There’s no better place to start than with Dr. Delio Carreras, a distinguished professor of Roman law and the official historian of the University of Havana. Delio has been a fixture in the Cuban academic scene for decades. He is unforgettable. (Part 1, Part 2) When Jean Paul Sartre and Simone de Beauvoir visited Cuba in the 1970s, Delio was their guide. And it was an important visit too because it was the intervention of Sartre, Susan Sontag, and others that persuaded the Cuban government to end the UMAP work camps, established on a Soviet model, to “socialize” cultural dissidents like homosexuals and religious adherents into revolutionary values.

Dr. Caridad Valdes, also on the UH faculty, is another luminary on the Cuban legal scene. Her speciality is the Cuban Civil Code. Here she begins explaining its structure: (Part 1, Part 2).

Yohan San Miguel is a professor of Cuban commercial and corporate finance law. Here he sends us a greeting, argues that the roots of the nation can be found in law, and discusses the impact of the U.S. embargo on the Cuban payments system. (Part 1, Part 2)

The annual Day of the Teacher fell during my visit and, at a law school ceremony, I heard an extraordinary law student, Fernando Ferriera, perform a Cuban estampa as part of the day’s festivities. The estampa is a spoken-word poem that humorously captures some aspect of Cuban life, often life in the city. and was popularized by Luis Carbonell. Fernando sends this greeting to Cuban-Americans and others: Fernando. He studied with Carbonell, whom you can hear at this site — Luis Carbonell.

Abel Sierra Madero is a historian of sexuality who wrote La Nacion Sexuada, a historical account of how the regulation of sexuality in Cuba coincided formed part of the construction of Cuba’s national identity. Abel works at the Fundacion Fernando Ortiz, a well-known publishing house. (Part I, Part 2, Part 3). I tried to bring Abel here to teach a course on the construction of sexuality in Cuba, but U.S. visa restrictions got in the way.

Nothing substitutes for meeting them, but I at least wanted you to see them and hear their voices.

JG

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The craft of research (and, indeed, thinking)

Of course, you should follow the advice of your LS&V professors on your writing assignments, but for those of you with an academic bent, let me recommend what I consider to be the finest single source on scholarly writing, The Craft of Research by Wayne C. Booth, Gregory G. Colomb, and Joseph Williams. You may already be familiar with Eugene Volokh’s Academic Legal Writing, which addresses law review and law paper writing, as conventionally understood. The Craft of Research addresses scholarly writing and thought more generally and across a wider range of disciplines. The library has two copies of it in the reserve for my debt seminar and the FIU bookstore also has it. Here’s an interview with the book’s authors: http://www.press.uchicago.edu/Misc/Chicago/065685in.html. This version represents the synthesis of separate guides by the authors on style, research, and argument, each of which are useful. In particular, Joseph Williams’ Style: Toward Clarity and Grace stands out as a treasure-trove of advice, well worth getting if you want to improve your style.

In addition to bringing together in one place and critically evaluating all of the traditional guidance that you received (or should have received) on writing, the book uses a behavioral approach that breaks down the many complex processes involved in writing into concrete, bite-sized (although the bites may seem enormous at times) steps. Often when I am impressed by the writing of others, I have asked myself “how did they do that with words and arguments?” The good news is that the book tells you how; the bad news is…it can involve a lot of work.

The Craft of Research has something good on each page, but let me point out some highlights by chapters, which might change from edition to edition. Chapter 4 takes you through the process of going from a general interest in something to the type of specific problem which most research tackles. The section in Chapter 8 on the type of claim which research should make (”substantive, contestable, and specific”) is one of the most useful discussions I have ever encountered on what it means to take a position. The chapters on reasons, evidence, and warrants encourage you to appreciate the formal elements of an argument and, again, break it down into learnable steps. The advice in Chapter 13 on revision of drafts is priceless, although at first the structured process recommended may seem overwhelming.

Again, my initial reaction to the book was equal parts relief and anxiety, because the book announces a very demanding left-brain approach (formalism, linearity, sequence) to writing but - unlike many others - it tells you exactly what to do to reach the standard. I’m more right-brain but I could see the value of mastering left-brain narrative style because that way your message becomes more intelligible in the world. And I found that I could digest the techniques and that they helped with my messages. So if you’re interested in finding, refining, and disseminating your voice in scholarly and other written media, check out the book.

While we’re on the topic, let me also recommend an on-line writing group which I have found terrific. Writing is hard work and the rewards are long delayed, so it’s easy to lose your motivation. One of the suggestions made in another excellent writing book, How to Write a Lot, recommended by the American Psychological Association( http://books.apa.org/books.cfm?id=4441010) is that aspiring academics (and writers generally) join a writing group to provide support to each other vis-a-vis one’s writing goals. For the last year, I have been participating in an on-line group sponsored by The Academic Ladder (http://www.academicladder.com/), a private group which offers a variety of services to writers (it’s not free, but it’s not too expensive). These groups cultivate the habit of daily writing, something which takes much but not all of the horror out of writing.

Posted in Life of the mind | 3 Comments »

Response to Ernesto’s comment: Of claims and counterclaims

Ernesto makes some excellent points.  First, it does seem that essentially all property is effectively controlled by the government but, at the margins, there are some private property interests springing up in ad hoc fashion in particular real estate developments.  At our conference last week, Miami attorney Tony Zamora discussed the current status of real property investment in Cuba and pointed that some long-term leases are being granted in relatively high-end properties, e.g., $500/sq. ft.  And it’s not only housing stock which is bad condition, as Ernesto points out, but much infrastructure in Cuba is in bad need of upkeep and investment.  And, in addition to whatever the visible rate of unemployment in Cuba, the effective rate of unemployment may be higher because  while the official sector employs many it could be said that even in these jobs people are “under-employed.”

I also agree that few Cubans will actually bring claims.  As Ernesto points out, even before any international law mechanism is established to settle political risk claims (as was done with Iran, for example), any claimant could — conceivably — file a claim in a Cuban court, although that might mostly be a symbolic action.  And the truth is, Cuba lacks the liquidity to settle claims in any meaningful way.  Even though emigration meant overcoming enormous hardships for the Cubans who left (a story which is told brilliantly in Alejandro Portes and Alex Stepick’s City on the Edge: The Transformation of Miami (1993), which I strongly suggest to anyone who wants to understand Miami’s cultural dynamics), the emigrants have come to enjoy a dramatically better standard of living than those who stayed behind.   This disparity makes it seems unlikely that emigrants will demand back their homes.

Which should make you wonder about who and what are at stake when property claims becomes a rallying cry locally.  It’s easier to think in terms of a property claim with a dollar value, but these property losses “stand in” for more complex losses in culture, society, and self-esteem as a member of an ethnic community with a shared sense of meaning.  These losses never really really heal because you can’t “cover” in the open market by substituting what you lost with something else.  Which means that wily ideologues can mobilize this hurt for other purposes. What makes this especially cruel — indeed, it exploits the very constituencies which it purports to serve — is that the prospects of ever recovering what was lost — even in dollar terms — is not good, a point made persuasively by Dr. Timothy Ashby, a former Bush Commerce Department official, in his comments at our conference.

And about Hialeah…growing up in Waspy Boston, I had never even heard of it till I lived in Washington and had my first Cuban-American friend, an FIU grad from Hialeah (although he denied this, saying that he was from Miami Lakes).  Of course, as I learned what Hialeah was about, I liked it more and more, so much so that when I moved to Miami four years ago the first thing I did with my rental car was to go visit Hialeah.  I wanted a t-shirt or an ashtray or something with the Hialeah logo.  In one of those dollar stores in a strip mall, I asked the guy behind the cash register “Tienen algun recordatorio de Hialeah?”  Not skipping a beat, he said, “nadie se quiere acordar de Hialeah.”  Of course, he was wrong.  So I’m a strong defender of Hialeah.  I have the city seal on my office door and I’m especially proud to be part of a law school and university made possible, in part, by what Cuban-Americans from Hialeah and elsewhere have brought to Miami.

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