The Reception of Hans Kelsen\u27s Legal Theory in the United States: A Sociological Model

The Essay explores the reasons underlying opposition to Hans Kelsen\u27s approach to the law within the U.S. legal academy. The vehemence with which legal scholars within the United States rejected Kelsen\u27s philosophy of law is best understood as a product of numerous factors, some philosophical, some political and some having to do with professional developments within the legal academy itself. Because philosophical and political opposition to Kelsen\u27s legal philosophy has been well-explored in earlier articles, this Essay discusses those topics briefly in Part I and then sets out in Part II a sociological model that grounds the academy\u27s rejection of Kelsen\u27s pure theory of law in professionalization processes already well underway when Kelsen arrived in the United States. Kelsen had little impact in the U.S. legal academy not only because his brand of legal positivism was uncongenial to a U.S. audience. He also had little impact because he arrived in the United States just as the twin innovations of Legal Realism and the professionalization of the legal academy were solidifying their grips on the U.S. legal community. His mode of legal thought and his approach to legal education could not be accommodated within the newly-created discursive practice of the legal professoriate, and there was thus little possibility that his approach could be accommodated within that realm

Our Very Privileged Executive: Why the Judiciary Can (and Should) Fix the State Secrets Privilege

This paper was first presented at the Temple Law Review Symposium on Executive Power. In Reynolds v. United States, the Supreme Court shaped the state secrets privilege (the Privilege) as one akin to that against self-incrimination. In recent litigation, the government has asserted the Privilege in motions for pre-discovery dismissal, thus transforming the Privilege into a form of executive immunity. This Paper argues that courts must step in to return the Privilege to a scope more in keeping with its status as a form of evidentiary privilege. After reviewing the doctrinal origins of the Privilege, the Paper explores three types of issues implicated by the government\u27s invocation of the Privilege. The government, in calling for judicial deference to executive assertions of the Privilege, often realies on (1) separation of powers arguments or on (2) arguments sounding in institutional competence. Courts are often swayed by such arguments and thus give relatively little consideration to the (3) conflict of interest inherent in the government\u27s assertion of the Privilege and the impact of the successful invocation of the Privilege on the rights of individual litigants. The Paper then proceeds to address arguments that Congress can provide a check on executive abuse of the Privilege. The Paper argues that, assuming that Congress has constitutional authority, it lacks the will or the institutional competence to provide a proper solution to the problems raised by the Privilege. Instead, the Paper contends that, since courts created the Privilege, courts are best positioned to rein it in. The final section of the Paper provides examples drawn from case law illustrating mechanisms whereby courts can protect state secrets while also giving litigants adverse to the government their day in court

The Business Judgment Rule, Disclosure, and Executive Compensation

Despite its ubiquity in corporate law, the business judgment rule remains a doctrinal puzzle. Both courts and scholars offer different understandings of the Rule\u27s role in litigation brought against corporate directors and different justifications for its deployment to insulate such directors from liability for breaches of fiduciary duties. This Article rejects all existing justifications for the Rule and argues that the Rule is no longer needed to protect directors from liability either because the justifications offered never made any sense or because directors are now protected by other, statutory means. Rather, the Rule is needed today not to protect directors, but the corporations they serve from the irreparable harm corporations would suffer if forced to disclose prospective business plans in order to defend decisions taken by their boards. This Article follows some recent scholarship in arguing that the Rule is best understood as an abstention doctrine and argues that courts should invoke the Rule and abstain from the review of the business judgment of corporate directors when the litigation that gives rise to such review would compel the corporation to disclose information relating to its prospective business plans. The Article then Illustrates why the Rule should not apply in cases involving challenges to board decisions relating to executive compensation through a detailed discussion of the ongoing litigation relating to the hiring and dismissal of the Walt Disney Company\u27s former President Michael Ovitz

Internet Giants as Quasi-Governmental Actors and the Limits of Contractual Consent

Although the government’s data-mining program relied heavily on information and technology that the government received from private companies, relatively little of the public outrage generated by Edward Snowden’s revelations was directed at those private companies. We argue that the mystique of the Internet giants and the myth of contractual consent combine to mute criticisms that otherwise might be directed at the real data-mining masterminds. As a result, consumers are deemed to have consented to the use of their private information in ways that they would not agree to had they known the purposes to which their information would be put and the entities – including the federal government – with whom their information would be shared. We also call into question the distinction between governmental actors and private actors in this realm, as the Internet giants increasingly exploit contractual mechanisms to operate with quasi-governmental powers in their relations with consumers. As regulators and policymakers focus on how to better protect consumer data, we propose that solutions that rely upon consumer permission adopt a more exacting and limited concept of the consent required before private entities may collect or make use of consumer’s information where such uses touch upon privacy interests

Introduction: Targeting in an Asymmetrical World

This is the introduction to a collection of articles to be published in the Valparaiso University Law Review. The articles address the challenges presented by non-traditional warfare and non-traditional combatants in the contexts of the War on Terror and the trend toward multilateral and humanitarian interventions. Two of the contributions, those of Jonathan Hafetz and David Frakt, detail the hybrid model, part criminal law, part law of war, that the United States developed for addressing the status of detainees in the War on Terror. Two of the contributions, those of Rachel VanLandingham and Iain Pedden, propose international models for addressing the challenges of the new warfare, while Laurie Blank advocates a new focus on enforcement at both the national and international levels to address violations of the principle of distinction. Read together, the articles in this collection present a convincing argument that the United States needs to work with other states and international organizations to forge international solutions to the international problems posed by the new warfare

International Legal Positivism and Legal Realism

This chapter, a contribution to a book on International Legal Positivism in a Post-Modern World, gauges the potential for mutually enriching interactions between international legal positivism and legal realism. It first describes the encounter between legal positivism and legal realism in the U.S. legal academy and then proceeds to discuss the rise of a new legal realism in international legal theory. In a concluding section, the chapter assesses the compatibilities and tensions between the new international legal realism and the new international legal positivism.With its forthright embrace of the inescapability of uncertainty in law, the new international legal positivism adopts a sceptical position very similar to legal realism. However, this chapter contends, the new international legal positivism still requires a realist supplement in order to provide a fuller understanding of the way in which legal norms interact with non-legal factors and to help us describe, predict and analyse the behaviour of actors in international affairs. At the same time, new international legal realists can learn from the sceptical attitude towards sources of law that new international legal positivists have developed. The two movements can be symbiotic if brought into closer dialogue. Nonetheless, this chapter concludes with a dose of pessimism about the capacity of any of the currently available theories of international law to fully assimilate the complexities of both postmodern theory and postmodern global society into a comprehensive theory of international law in the postmodern world

A Path Not Taken: Hans Kelsen\u27s Pure Theory of Law in the Land of Legal Realists

This Essay is a contribution to a volume on the influence of Hans Kelsen’s legal theory in over a dozen countries. The Essay offers four explanations for the failure of Kelsen’s pure theory of law to take hold in the United States. Part I covers the argument that Kelsen’s approach failed in the United States because it is inferior to H. L. A. Hart’s brand of legal positivism. Part II discusses the historical context in which Kelsen taught and published in the United States and explores both philosophical and sociological reasons why the legal academy in the United States rejected Kelsen’s approach. Part III addresses the pedagogical obstacles to bringing Kelsen’s Pure Theory into classrooms in the United States. The final section addresses the U.S. legal academy’s continuing resistance to the pure theory of law. The vehemence with which legal scholars within the United States rejected Kelsen’s philosophy of law is best understood as a product of numerous factors, some philosophical, some political and some having to do with professional developments within the legal academy itself. Because the causal significance of philosophical and political opposition to Kelsen’s legal philosophy has been overstated, this Essay supplements those explanatory models with a sociological account of the U.S. legal academy’s rejection of Kelsen’s pure theory of law

Is the Quest for Corporate Responsibility a Wild Goose Chase? The Story of Lovenheim v. Iroquois Brands, Ltd.

Peter Lovenheim owned a small stake in Iroquois Brands, Ltd (Iroquois). He proposed that the corporation discontinue its distribution of one product, pâté de foie gras, because he objected to the treatment of the geese necessary to the production of the product. Under federal regulations, Iroquois was required to include such proposals in the proxy materials it sent out in advance of its annual shareholder meeting unless an exception applied. Iroquois Brands thought it could exclude the proposal because the product in question constituted a trivial part of its business. Lovenheim went to the District Court seeking an order requiring Iroquois Brands to distribute his proposal, and the District Court granted Lovenheim the relief he sought. In teaching the case in my Business Associations course, I have often wondered how Peter Lovenheim came to make his proposal and whether such whether such proposals relating to social or ethical issues (social proposals) are a proper use of the shareholder proposal mechanism. The District Court recognized an extremely broad right of shareholders to bring social proposals. The decision to do so makes more sense when the case is situated in its various historical contexts, including the history of the governing regulations and the case law that informed the District Court’s opinion. The story of Lovenheim contains its share of surprises. First, Lovenheim was, in many ways, the ideal shareholder proponent. He bought Iroquois stock as an investment, but he also had certain ideas about the nature of the company. He believed in the company, and he did not think that distributing pâté de foie gras was consistent with his idea of the company. He was confident that other shareholders would feel the same way. Second, although Lovenheim’s proposal ultimately did not succeed with Iroquois’ shareholders, the company did discontinue the product. Lovenheim thus considered his proposal a success, and for several years after the case was decided, he teamed up with like-minded people to use the shareholder proposal mechanism to pressure corporations to adopt policies promoting the humane treatment of animals. The story of Lovenheim thus illustrates the extra-legal consequences of shareholder activism. After a history of the relevant SEC regulations and their fates in the courts, the Article presents the complete narrative of the Lovenheim case, providing details that are not captured in the decision or in the limited secondary literature relating to the case. It explains the legal landscape and why the Lovenheim case was such a groundbreaking case. In the final section, the Article explains why the case has remained good law in the 25 years since it was decided and why corporations are not motivated to pressure the SEC to limit shareholders’ rights to bring social proposals

Book Review: HENRY J. RICHARDSON III, THE ORIGINS OF AFRICAN-AMERICAN INTERESTS IN INTERNATIONAL LAW

This short review evaluates Professor Richardson\u27s book both as a contribution to the history of the Atlantic slave trade and as contribution to critical race theory. Professor Richardson has read innumerable historical monographs, works of legal and sociological theory, international law and critical race theory. Armed with this store of knowledge, he is able to recount a detailed narrative of African-American claims to, interests in and appeals to international law over approximately two centuries spanning, with occasional peeks both forward and backward in time, from the landing of the first African slaves at Jamestown in 1619 to the 1815 Treaty of Ghent. The work partakes of some of the narrative and methodological strategies of the critical race theory tradition, including the fictive reconstruction of historical events, with new African-American voices added to the mix. But Professor Richardson is equally at ease with the approach to international law of the New Haven School, and he is thus able to write with great authority of how African-American history can be understood to have comprised a tradition of appeals to international law or international legal norms as a source of remediation for the injustices that African-heritage people suffered in the Americas