Sustaining Collective Self-Governance and Collective Action: A Constitutional Role Morality for Presidents and Members of Congress

In the United States today, the behavior of the political branches is generally viewed as more damaging to the American constitutional system than is the behavior of the federal courts. Yet constitutional law scholarship continues to focus primarily on judges and judging. This Article suggests that such scholarship should develop for presidents and members of Congress what it has long advocated for judges: a role morality that imposes normative limits on the exercise of official discretion over and above strictly legal limits. The Article first grounds a role morality for federal elected officials in two purposes of the U.S. Constitution whose vindication requires more than compliance with legal rules: securing the American conception of democracy as collective self- governance and creating a reasonably well-functioning federal government. Given its close connection to those purposes, a role morality for presidents and members of Congress is appropriately described as constitutional, not merely political. This Article then proposes some rhetorical, procedural, and substantive components of constitutional role morality, including a commitment to consult the political opposition before taking important actions and a rebuttable presumption in favor of moderation and compromise. The Article also explains how different actors in the American constitutional system should execute their professional responsibilities if they are to make it more, rather than less, likely that such a role morality will eventually be adopted and maintained. A final part anticipates objections, including the concern that the vision offered here faces significant implementation problem

Anti-Primacy: Sharing Power in American Corporations

Prominent theories of corporate governance frequently adopt primacy as an organizing theme. Shareholder primacy is the oldest and most used of this genre. Director primacy has grown dramatically, presenting in at least two distinct versions. A variety of alternatives have followed—primacy for CEOs, employees, creditors. All of these theories can’t be right. This article asserts that none of them are. The alternative developed here is one of shared power among the three actors named in corporations statutes with judges tasked to keep all players in the game. The debunking part of the article demonstrates how the suggested parties lack legal or economic characteristics necessary for primacy. The prescriptive part of the article suggests that we can better understand the multiple uses of primacy if we recognize that law is not prescribing first principles for governance of firms, but rather providing a structure that works given the economic and business environment in place for modern corporations where there is separation of function and efficiencies of managers as a starting point. Thus the familiar statutory language putting all power in the board must be read against the reality of the discontinuous nature of the board (and shareholder) involvement in governance. Corporate governance documents of the largest American corporations, as discussed in the article, are consistent with this reality, assigning management to officers and using verbs like oversee, review and counsel as the director functions. The last part examines dispute resolution and the role of judges in such a world, with a particular focus on the shareholder/director boundary. At this boundary there are two distinct judicial roles, the traditional role focusing on use of fiduciary duty to check conflict and other director incapacity and the less-recognized role of protecting shareholder self-help. In this more modern context shareholders, because of market and economic developments, are able to effectively participate in governance in a way that wasn’t practical three decades ago, when the key Delaware legal doctrines were taking root. What is particularly interesting here is how courts, commentators and institutional investors act in a way that is consistent with a shared approach to power, as opposed to the primacy of any of the theories initially suggested

Calling the judiciary to account for the past : transitional justice and judicial accountability in Nigeria

Institutional and individual accountability is an important feature of societies in transition from conflict or authoritarian rule. The imperative of accountability has both normative and transformational underpinnings in the context of restoration of the rule of law and democracy. This article argues a case for extending the purview of truth-telling processes to the judiciary in postauthoritarian contexts. The driving force behind the inquiry is the proposition that the judiciary as the third arm of government at all times participates in governance. To contextualize the argument, I focus on judicial governance and accountability within the paradigm of Nigeria’s transition to democracy after decades of authoritarian military rule

Why a World State is Unavoidable in Planetary Defense: On Loopholes in the Vision of a Cosmopolitan Governance

The main claim of this chapter is that planetary defense against asteroids cannot be implemented under a decentralized model of democratic global governance, as espoused elsewhere in this book. All relevant indices point to the necessity of establishing a centralized global political authority with legitimate coercive powers. It remains to be seen, however, whether such a political system can be in any recognizable sense democratic. It seems unconvincing that planetary-wide physical-threat, all-comprehensive macrosecuritization, coupled with deep transformations of international law, global centralization of core decision-making powers, de-stigmatization of nuclear weapons and the like can proceed, succeed, and be implemented in a non-hierarchical international system where planetary defense constitutes only one regime among many, and where states basically remain the decisive actors. Although rationally and scientifically robust, the project suffers from oversimplification, as well as naivety with respect to how both international and domestic politics works. Among other topics, this chapter discusses problems associated with the rule of law and constituent powers, political representation and sources of legitimacy, conditions of multilevel collective action, or limits of theoretical idealization. The general message is that the planetary defense community needs to be more aware of the social and political context of its own enterprise

Hyper-legalisation and delegalisation in the AFSJ: on contradictions in the external management of EU migration

The EU governance of migration has distinct internal and external facets, which may be viewed as innately contradictory. On the one hand, for example, there is legal competence for enhanced measures to combat illegal immigration but on the other hand, it is to manage efficiently migration flows, yet with fairness towards third country nationals. These contradictions define the EU’s Area of Freedom Security and Justice more generally, as a complex and evolving site of tremendous injustice and crisis. In times of crisis, there is an increasing number of soft law tools in EU external migration, used to enable flexibility, deploying management lexicon, principles and tools as a means to avoid or minimalize the need for ‘hard’ binding law (e.g. frameworks, compacts, action plans), in a process of ‘hyper-legalisation’ of external migration. Often, it results from the multiplicity of constitutional competences applying in external migration. It mirrors well other crisis-ridden subjects of EU law, in particular as to the financial crisis. On the other hand, there is also a trend in significant recent caselaw towards the ‘de-legalisation’ of migration policy, putting key legal and policy questions in forms beyond review and outside of the treaties, as in the financial crisis as well as other leading cases. They explicitly detail the nature of the contradictions at the heart of the external dimension to the AFSJ in the area of migration and the problematic nature of EU law-making. They also provide reason for concern about basic conceptualisations of the rule of law therein. The key decisions arbitrarily decide the scope of ‘non-legislative’, ‘non-application’ and ‘European’ as to EU law. They emphasise the contradictions at the heart of the AFSJ, increasingly excluded through judicial review

Rules, Standards, and the Internal Point of View

Large scale structure and cosmolog