Monday, April 30, 2007

Upcoming Presentation and Moving Forward Conference (UPDATE)

We are winding down the Spring events series in May with a presentation by Fozia Lone titled "Restoration of historical title, State Continuity & Succession: Revisiting the Kashmir Case within International Law." It is sure to be an interesting presentation.

Coming next month, the College of Arts and Social Sciences Moving Forward Postgraduate Conference will take place on the 13th and 14th of June. There will be over 20 law presentations at the conference, from researchers as far away as Nigeria, Denmark, Ireland, and a handful from Aberdeen as well. The deadline has passed for submission of abstracts, but you can still register for the conference to attend the events and the evening reception. Details about the conference are available here.


Justin Borg Barthet will present his research on May 29th in a presentation titled "Theories of the Firm and connecting factors". Here is the abstract:

Theories regarding the determination of the governing law of corporations can broadly be traced to two schools of thought. On the one hand, the incorporation theory is based on the contractual paradigm. In this construct, the principal feature that should determine the governing law is the freely expressed will of the shareholders. The real seat theory, on the other hand, takes the view that the corporation, as a fiction of national law, is inextricably linked to the State of its management centre, and that it is only this State that could determine the existence and scope of its legal personality.

Corporate law theorists have long debated the nature and purpose of the firm. The fundamental question of the extent to which the will of shareholders should be curtailed by the interests of other stakeholders in the firm remains unresolved in corporate governance theory. However, this has not translated into a deep and sustained analysis in the conflict of corporate laws camp. Proponents of the incorporation theory readily assume that the contractual liberty of shareholders trumps all other considerations, while proponents of the real seat theory are often equally dogmatic in their State-centric assumptions. Notwithstanding that both schools of thought make fundamental assumptions about the nature of the firm, the myriad relationships arising from the employment of the corporate form are not subjected to sufficient sustained scrutiny in the context of connecting factors in the conflict of corporate laws.

In this paper, an analysis of the policies adopted in a number of States will demonstrate that there is a clear nexus between corporate policy and conflicts theory. There is ample doctrinal and regulatory evidence to support the view that the nature of the firm is an essential feature of conflicts theory. This is also evidenced through the safeguards that are built into conflicts rules in States that adhere to the incorporation theory. In the final analysis, by accident rather than by design, the real seat theory is better placed to take the full spectrum of the firm’s relationships into account.

Friday, April 20, 2007

The Supreme Court Upholds a Partial Birth Abortion Ban

The Supreme Court in a close 5-4 decision upheld a Federal ban on partial birth abortions in Gonzales v. Carhart. You can read the opinions here. The decision was a very close one, as an earlier ban by the State of Nebraska of the procedure was struck down 5-4. In that case Justice Sandra Day O'Conner joined the majority in striking down the State law. However in this case, her replacement Samuel Alito voted in favor of the ban.

The majority opinion was authored by Kennedy, and joined by Roberts, Scalia, Thomas, and Alito. The dissenting opinion was written by Ginsburg and joined by Stevens, Souter, and Breyer. The opinion applied the same "undue burden" test as in Planned Parenthood v. Casey. Ginsberg writes quite strongly in opposition to the majority saying:

Today’'s decision is alarming. It refuses to take Casey and Stenberg seriously. It tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists (ACOG). It blurs the line, firmly drawn in Casey, between previability and postviability abortions. And, for the first time since Roe, the Court blesses a prohibition with no exception safeguarding a woman’s health.

The decision bans a specific method of abortion, and means doctors who perform the prohibited procedure may face criminal penalties. The federal law was enacted in 2003, but has not yet taken effect because of the legal challenges to it. The ruling will only impact a small portion of abortions. However, it will bring abortion to the forefront of political discourse in the US, and will put it front-and-center in the 2008 presidential campaign.

The decision is noteworthy for a number of other reasons. When Justice Alito worked for the Reagan administration, he advocated in White House Memos that abortion opponents should try to chip away gradually at the legality of the procedure, rather than trying to end it outright. This decision seems to be just such a move.

Also, both Scalia and Thomas indicated that there may be a good case to be made for banning this law under the Commerce Clause. Congress' authority to regulate abortion comes under its Constitutional authority to regulate interstate commerce. This is a complicated topic, and one that goes beyond the scope of this blog, but essentially the commerce clause allows the federal government to regulate a number of things, including in the past important parts of the New Deal, and the Civil Rights Act of 1964. The use of the Commerce Clause by Congress to allow it to exercise its power has been a very controversial topic, and one which I see echoes of in Europe's attempts to govern itself. Under the 10th amendment, the Federal government has the power to regulate only those matters specifically delegated to it under the Constitution. Other powers are reserved to the States or the people. The Commerce Clause is one of the few powers specifically delegated to the federal government and its interpretation is quite important in determining the extent of the Federal Government's powers. In recent years, the more conservative members of the court have begun to take Congress' Commerce Clause powers back a notch. Thomas and Scalia both seemed to indicate in a separate concurring opinion that the law could be challenged under the Commerce Clause.

Finally, Senator Harry Reid, a Democrat from Utah came out looking like a very big fool in all of this. Reid is the Democratic majority leader of the Senate and a Mormon. He voted for the ban in 2003. However after the opinion on NPR he criticized the opinion and argued it was wrongly decided. So after voting for the ban, he now claims that it should be ruled unconstitutional. If it was unconstitutional in 2003, why did Reid vote for it?

In any event, the opinion marks yet another resurgence of the abortion debate in the US, and will unfortunately be an excuse for a great deal of uninformed and ignorant ranting by both sides.