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miami law lecture: catherine powell on race, gender and nation in an age of shifting borders October 14, 2019

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At 6.00 pm tomorrow, at the Law School, this will be the annual Louis Henkin Lecture.

uk parliament gets back to work tomorrow September 24, 2019

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And all live Bills of the 2017 session remain live.  

uk supreme court: prorogation unlawful, null and of no effect September 24, 2019

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The Constitutional principles of Parliamentary sovereignty and parliamentary accountability mean that there are limits to the power to prorogue Parliament:

“For the purposes of the present case, therefore, the relevant limit upon the power to prorogue can be expressed in this way: that a decision to prorogue Parliament (or to advise the monarch to prorogue Parliament) will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive. In such a situation, the court will intervene if the effect is sufficiently serious to justify such an exceptional course.”

Prorogation had the effect of frustrating or preventing the constitutional role of Parliament in holding the Government to account, and there was no “reasonable justification for taking action which had such an extreme effect upon the fundamentals of our democracy.”

Four points made clear at the outset:

1. The Prime Minister has with respect to prorogation “a constitutional responsibility, as the only person with power to do so, to have regard to all relevant interests, including the interests of Parliament.”

2. “[A]lthough the courts cannot decide political questions, the fact that a legal dispute concerns the conduct of politicians, or arises from a matter of political controversy, has never been sufficient reason for the courts to refuse to consider it….almost all important decisions made by the executive have a political hue to them. Nevertheless, the courts have exercised a supervisory jurisdiction over the decisions of the executive for centuries. Many if not most of the constitutional cases in our legal history have been concerned with politics in that sense.”

3. “The Prime Minister’s accountability to Parliament does not in itself justify the conclusion that the courts have no legitimate role to play.”

4. “[I]f the issue before the court is justiciable, deciding it will not offend against the separation of powers. As we have just indicated, the court will be performing its proper function under our constitution. Indeed, by ensuring that the Government does not use the power of prorogation unlawfully with the effect of preventing Parliament from carrying out its proper functions, the court will be giving effect to the separation of powers.”

english high court: prorogation not justiciable September 11, 2019

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In contrast with the Court of Session, the English High Court held today that the prorogation is not justiciable. At para. 42 the court stated:

The criteria adopted by the courts for identifying non-justiciable exercises of prerogative power are whether they involve matters of “high policy” or are “political”.

And, at para. 47, :

the essential characteristic of a “political” issue is the absence of judicial or legal standards by which to assess the legality of the Executive’s decision or action.

hong kong stock exchange offer for london stock exchange September 11, 2019

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After weeks of civil unrest in Hong Kong, raising questions about the extent to which Hong Kong is, and may continue to be,  run under a separate regime from that of mainland China, the Hong Kong Stock Exchange announced a planned offer for the London Stock Exchange. This week Brexit got even more complicated (today the Court of Session held that the prorogation of Parliament until October 14th was unlawful), and the offer raises some interesting questions about what financial market activity in the UK might look like after Brexit.  

forthcoming symposium on petty offenses at umlaw September 10, 2019

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On 20-21 September there’s what promises to be a fascinating and important symposium, open to all, on petty offenses and social justice at the Donna Shalala Student Center at UM.  You can sign up here.

The event will explore the use of litigation; human rights advocacy at international, regional, national, and local levels; and creative campaigning. It will draw on work from Ghana, Guinea, Guyana, Hungary, India, Israel, Jamaica, Kenya, Madagascar, Malawi, Nigeria, Sierra Leone, Uganda, and the United States. A special symposium issue of the University of Miami Law Review and the University of Miami Race and Social Justice Law Review will further capture lessons and reflections.

Faculty from Miami Law who work at the intersection of criminal law and human rights, including Caroline Bettinger-LópezDonna Coker, Tamar Ezer, and Stephen Schnably, who was co-counsel on the landmark Pottinger v. City of Miami case, will be featured. Additionally, the conference brings together key experts from the field, including Maria Teresa Manuela with the African Commission on Human and Peoples’ Rights and special rapporteur on Policing and Prisons in Africa; Anneke Meerkotter, the litigation director of the Southern Africa Litigation Centre; Rob Robinson, a housing rights advocate with the National Economic and Social Rights Initiative and formerly homeless himself in Miami and New York; and Tracy Robinson, the deputy dean of the Faculty of Law at the University of the West Indies and former president of the Inter-American Commission on Human Rights. 

uk parliament and brexit August 28, 2019

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If I could I would be protesting outside Parliament today. The number of actual sitting days lost may be small, but the intention is to prorogue Parliament to enable a no-deal Brexit. The idea of violating constitutional traditions (if not law) to achieve a no-deal Brexit that no-one voted for is shameful and wrong. And it makes me wonder what comes next if they get away with this.

And if I weren’t resident outside the UK and deprived of the ability to vote I would sign the petition.

miami law hiring announcement August 26, 2019

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The University of Miami School of Law seeks entry-level and lateral candidates to join our intellectual community beginning in the 2020-2021 academic year. These faculty hires will fill particular needs in International Law (public or private), Evidence, and Alternative Dispute Resolution (arbitration and negotiation, particularly). We also seek a Director of the Litigation Skills program at the tenured/tenure-track/non-tenure-track level, and are especially interested in candidates with a capacity to teach in at least one of the areas identified above. Finally, we seek to hire two professors of Legal Communication and Research Skills in non-tenure track positions.

The Law School is committed to diversity of all kinds in its faculty, students, and staff and encourages applications from candidates who will increase the diversity of the Miami Law community. The University of Miami is an Equal Opportunity Employer that does not discriminate on the basis of race, color, national or ethnic origin, sex, sexual orientation, gender identity and gender expression, disability, religion, age, status in the uniformed services of the United States (including veteran status), marital status, status as a victim of domestic violence, citizenship status, genetic predisposition, carrier status, or any other classification protected under federal, state, or local law.

Entry-level applicants are encouraged to use the AALS submission process to apply. Lateral applicants may submit a cover letter, curriculum vitae, writing sample, the names of three references, and teaching evaluations (if available) in PDF format to Professor Charlton Copeland, Chair, Faculty Appointments Committee, at ccopeland@law.miami.edu .

politics and financial stability August 23, 2019

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Regulators in the US are relaxing regulatory constraints on financial institutions introduced in response to the financial crisis, although recent episodes of volatility in financial markets and suggestions that recessions are underway or developing raise some questions about whether this makes sense.  It is not clear that the post crisis regulatory changes had a negative effect on SME financing, for example (the Financial Stability Board suggested this in the summer,  and asked for reactions).  And, in addition to purely economic considerations there are political developments which raise questions about risks to financial stability, such as the concerns banks in Hong Kong have raised about protests there.

Jerome Powell today had some words about financial stability:

At the end of the day, we cannot prevent people from finding ways to take excessive financial risks. But we can work to make sure that they bear the costs of their decisions, and that the financial system as a whole continues to function effectively. Since the crisis, Congress, the Fed, and other regulatory authorities here and around the world have taken substantial steps to achieve these goals. Banks and other key institutions have  significantly more capital and more stable funding than before the crisis. …  We have not seen unsustainable borrowing, financial booms, or other excesses of the sort that occurred at times during the Great Moderation, and I continue to judge overall financial stability risks to be moderate. But we remain vigilant.

However, he also pointed out that “fitting trade policy uncertainty” into the Fed’s analysis was “a new challenge.” Recent events are complex:

The three weeks since our July FOMC meeting have been eventful, beginning with the announcement of new tariffs on imports from China. We have seen further evidence of a global slowdown, notably in Germany and China. Geopolitical events have been much in the news, including the growing possibility of a hard Brexit, rising tensions in Hong Kong, and the dissolution of the Italian government. Financial markets have reacted strongly to this complex, turbulent picture. Equity markets have been volatile. Longterm bond rates around the world have moved down sharply to near post-crisis lows. Meanwhile, the U.S. economy has continued to perform well overall, driven by consumer spending. Job creation has slowed from last year’s pace but is still above overall labor force growth. Inflation seems to be moving up closer to 2 percent.

It’s not clear to me that at this point suggesting to financial institutions that they should be taking on more risk makes sense.

business judgment and the business roundtable on corporate social responsibility August 23, 2019

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Alison Frankel discusses the implications of the Buisness Roundtable’s new Statement of Principles here. Will a Board that decides to act in the interests of non-shareholder stakeholders risk losing the protection of the business judgment rule or not?  The article predicts that when

“shareholder firms start filing suits claiming that directors shouldn’t be concerned with global climate change or overseas labor laws.. [t]he business judgment rule is going to get a whole new workout.”

As the article points out many of the shareholder primacy emphasizing decisions relate to M&A transactions. The context matters, I think. There’s a big difference between a decision about the value of the payout a shareholder will get as the result of such a transaction and a decision as to how to allocate the corporation’s budget. The first in some sense isn’t really a business judgment.

I think there is a risk of liability (following from disapplication of the business judgment rule)  if Boards decide to behave like Henry Ford, and announce that they are adopting climate friendly or employee friendly policies because it’s the right thing to do and they don’t care about shareholders.  And there are corporate executives who behave in ways that suggest some disinterest in compliance with legal rules (e.g. disruptive businesses designed to challenge existing structures and rules). But I don’t expect there to be many cases like this. Corporations are likely to engage in climate risk mitigation where the law requires them to do so (e.g. when the risks are seen as material) or where concerns for reputation turn the longer term issues of financial risk into shorter term issues of reputation risk. Do businesses stop using plastic straws to save the environment from plastic or because they think many of their actual and potential customers care about plastic pollution?

A business decision to engage in climate risk mitigation that is presented as a decision to protect long term value and the current reputation of the corporation should benefit from the protection of the business judgment rule. Whether investors will kick up a fuss is a different question.