Sunday, February 19, 2017

Chapter 7 (Chapter Summaries) "Beyond Law: Governance and Legal Effects of Law in Social Norms, Contract Communities, and Disclosure Regimes" From "Elements of Law and the United States Legal System"

(Washington Monument Pix © Larry Catá Backer 2016)

I recently announced the forthcoming publication by Carolina Academic Press of my Elements of Law and the United States Legal System (ISBN: 978-1-61163-927-8 • e-ISBN: 978-1-61163-984-1).

The work made sense as a century of legalization (here and here) and judicialization (here and here) forces more and more people worldwide to bump up against aspects of aspects of the U.S: legal system.  The system is a complex amalgamation of distinct approaches to legalization, and the mechanics of its implementation, that  tends to be mystifying to everyone, even individuals trained in law elsewhere. Most people tend to be hard pressed to explain the U.S. legal system either to non-lawyers or to foreigners, even sophisticated foreign lawyers or jurists, or for that matter to each other. Most would find it difficult unravel the distinct strands of law in the United States, each of which deeply embedded within their own internally coherent systems of generation, interpretation and application. The object of the book is to make the elements of law within the U.S. legal system more accessible and easier to invoke.

This set of posts provide interested readers with a more detailed description-summary of each chapter along with teaching objectives. After these descriptions I will circulate a chapter by chapter based draft Teacher's Manual. Comments welcome for all. 

All contents posted on line may be accessed here:

Summary book organization and Chapter 7 Summary follows.

The work is divided into three parts and a historical preface.  The Preface traces the origins of the materials and its objectives.  It suggests as well the challenges of teaching normative or framing concepts around a profession based on the training in technique; in effect the book seeks to expose the underlying normative structures and patterns well embedded within the techniques that tend to center the study  of law and legal subjects. Part I: What is Law? An Introduction,  is divided into two chapters.  Chapter 1 sets out a detailed roadmap for the materials built around an introductory problem that highlights the book's major themes. Chapter 2 then introduces the principal vocabulary, institutions and forms, starting with the issue of the connection between law, justice and the state. Part II: U.S. Law: System and Sub-Systems, then focuses on the principal components that together make up the U.S. legal system. Its five chapters each focus on three forms of law sub-systems.  The first includes law articulated by the courts--common law and equity.  The second touches on law articulated by legislatures--statutes and administrative regulations. The third focuses on emerging systems of governance beyond the state--private regulation, hybrid public-private regulation and social norms. Part III: Hierarchies of Law and Governance: The Relationship Between People, Law, and Government moves from the study of the specific characteristics of legal subsystems to their relationship to government. It speaks to the governmentalization of law. Its four chapters first consider the fundamental theories that tie law to the government, the role of rule of law concepts, the development of hierarchies of law within the domestic legal order of the United States and then the relationship of domestic to international law. Part IV: Institutional Architecture of Law and Governance: The Law of Government of the United States then considers the legal rules through which governmental regulatory authority may be exercised. If Part III spoke to the issue of the governmentalization of law, Part IV touches on the legalization of government. Its four chapters considers the fundamental principles of separation of powers and checks and balances, the constraining of administrative discretion, popular law making through initiative and referendum, and the legal structu8res of federalism. Part V: The Role of the Courts in the Application of Law: Judicial Review, Methodologies of Interpretation, and Legitimacy closes the circle by bringing the focus back to the courts and their engagement with law. The first of its three chapters touches on the doctrine of judicial review and the legalization of the authority to interpret and apply law beyond common law. The second of its chapters then considers the techniques of judicial interpretation and their relationship to judicial legitimacy.  The last of the chapters then considers the binding nat8re of judicial opinion, especially the legal effect of judicial decisions interpreting statute.

Chapter 7

Beyond Law: Governance and Legal Effects of Law in Social Norms, Contract Communities, and Disclosure Regimes

A. Introduction.

B. Problem 7
--Capano v. The Wilmington Country Club
--Sterling v. NBA

C. Law Beyond Traditional Sources and Methods—Social Norms, Contract Communities, and Disclosure Regimes
--1. Private Regulatory Systems Exercising Delegated Public Regulatory Authority: Self-Regulatory Organizations and Similar Entities.
-Silver v. New York Stock Exchange
-Notes and Questions
-Lilliputian Systems, Inc. v. Pipeline And Hazardous Materials Safety Administration
-Notes and Questions
--2. Non-state governance actors as influential sources of law and interpretation.
-Weiss, The Enchantment of Codification
-Notes and Questions
-Webster v. Culbertson
-Notes and Questions
-Aubin v. Union Carbide Corp.
-Goldstein, Revision of the Model Business Corporation Act
-Notes and Questions
-Braucher, Legislative History of the Uniform Commercial Code
-Notes and Questions
--3. Law and Social Norms: Systemic Aspects of Non State Regulatory Systems.
-Eisenberg, Corporate Law and Social Norms
-a. Direct Effect
-Marvin v. Marvin
-Notes and Questions
-b. Interpretive Authority
-C-Thru Container Corp. v. Midland Manufacturing Co.
-Notes and Questions
c. Instrumental Effects; Non-Law With the Functional Effect of Law
-Backer, From Moral Obligation
-Notes and Questions
-Dodd Frank Act Section 1502
-SEC, Fact Sheet: Disclosing the Use of Conflict Minerals
-Notes and Questions
--4. The Use of Non-Regulatory Methods for Regulatory Ends
-United States v. Mead Corp.
-Notes and Questions
-Backer, Global Panopticism: States, Corporations, and the Governance Effects of Monitoring Regimes
-Notes and Questions
-A Note on the theory of law as technique
--5. The Rise of Private Regulatory Systems in the United States (An Introduction)
-Backer, Multinational Corporations As Objects And Sources Of Transnational Regulation
D. Learning Objectives

A. Introduction
We have been considering the formal structures of law systems in the United States. The student has been introduced to the five distinct threads of law that make up the definition of law in the United States. We have come to understand that “law” in the United States refers to the complex interplay of four legal sub systems that together define the boundaries of law and governance.

Two of these strands are judge administered—common law and equity. These are passive systems in the sense that they require litigants to bring claims before courts in order for law to be recognized and applied. Common law can be understood as a shorthand for the entirety of the system of U.S. law (the U.S. is a common law country). Common law also refers to the rich system of substantive private law that has been the province of the courts for almost a millennium. Most importantly, common law references a method for dispute resolution and of interpretation that is bounded by precedent and steeped in notions of procedural fairness and the autonomy of decision making from decision makers. But judge administered law has also given rise to a methodology of judicial engagement with law that has in turn been an integral part of two of the legislative strands of law—statutes and administrative regulations. Yet the student has come to understand that the interpretation and application remains the province of the courts, in the last instance. And courts have applied the methodologies of common law, and the balancing sensibilities of equity, to the task of statutory construction and the determination of regulatory authority in administrative agencies. These are themselves complex interweaving of substantive law based on interactions between social norms and dispute resolution structures, of procedural methodologies—from the culture of precedent and deductive reasoning from cases, to the development of fairness based defenses, and of remedies.

Beyond the two strands of judicially administered law, the student was introduced to the great modern structures of law making in the United States—statutory law and administrative regulation. Each of these represent examples of the active principle of law making—they are commands of legislatures or administrative agencies that seek to manage activities or compel behavior. They represent conscious and instrumental exercises of authority to compel behavior for specific purposes and to specific ends. Statutory law required consideration of the culture of statutory law making in the United States as more inclined toward statutory complication rather than to integrated legal code development. That had significant consequences for the role of the courts in statutory interpretation and application, providing the opening by which statutes could be glossed through the application of a variant of common law judging techniques. Administrative regulation, a form of law making that is both highly specialized, and also lodged in agencies disconnected from direct accountability to an electorate required consideration of issues of delegated constraints on power and the character of regulation that is formally inferior to statute. Issues of jurisdiction and of conflict of interest in combining legislative, executive, and judicial authority in regulating agencies were explored. The move from legislation to regulation thus also marks a substantial transformation in the objectives of positive law making—usually but not always touching on technology, economic activity, and the social relations of citizens and residents.

These public strands of law also exist side by side with a private element of law making. With this chapter we consider this fifth strand of U.S. law and governance sources—rule making, governance, and administration that does not emanate from the state, but rather emerges through private governance developed and operated in and through non-state organizations. These private systems include authoritative private bodies that seek to interpret and influence the way law is understood and applied by courts—or modified by legislatures. They also include private systems of governance managed through contracts with regulatory character, and by the development of consensus norms among functionally differentiated groups. They also include private bodies to which regulatory authority has been delegated by the state—either directly by statute or indirectly through administrative regulation. In addition, the techniques of private law making—the use of the methodologies of monitoring, reporting, and assessment have become important elements of law making as well, especially by regulatory agencies since the early 21st century. But it has also come to mean more than that. As a methodology, a technique, of assessment and monitoring, the mechanics of data gathering, and the consequences of assessment have themselves become methods of regulating behavior that have the effect of law.

For ease of study, these forms of non-state law/governance systems will be considered within four broad categories. The first, examines private regulatory systems as a private exercise of delegated public regulatory authority. The second, considers non-state governance as a source of influence on positive law, common law, and equity. The third, examines non-state law in its systemic aspects, that is, as a code of conduct that functions like other public law systems, as a source of law binding on the community that adopts it. The fourth, examines non-state law as a series of techniques that have the functional effect of law by their ability to change behavior. The chapter ends with a problem that seeks to have students work through some of the use of these new techniques to contemporary governance efforts.

Learning objectives:
(1)  Students will be introduced to private regulatory systems as a private exercise of delegated public regulatory authority, with a focus on stock exchanges. 

(2) Students will be introduced to non-state governance as a source of influence on positive law, common law, and equity, with a focus on the role of the American Law Institute and the American Bar Association in law making.

(3) Students will examine non-state law in its systemic aspects, that is, as a code of conduct that functions like other public law systems, as a source of law binding on the community that adopts it.

(4) Students will be introduced to the use of governance as a technique of management through rules, disclosure regimes, and assessment.

(5) The student should be familiar with how administrative regulation can be naturalized within a social, economic, and political system so that it does not exist outside of the activities it regulates but deeply within as part of those activities themselves, through a reading of Backer’s “Global Panopticism: States, Corporations and the Governance Effects of Monitoring Regimes.”
(6) Students will be introduced to the work of the ALI through a reading of Weiss’ “The Enchantment of Codification in the Common-Law World.”

(7) Students should be familiar with the impact of the ALI’s Restatements through a reading of Webster v. Culbertson.

(8) Students should be familiar with model or uniform laws, such as the MBCA and the UCC, through a reading of Goldstein’s “Revision of the Model Business Corporation Act,” and Braucher’s “The Legislative History of the Uniform Commercial Code.”

(9) Students will be introduced to the relationship between law and social norms through  a reading of Eisenberg’s “Corporate Law and Social Norms.”

(10) Students should be familiar with how courts embed social norms into the common law through a reading of Marvin v. Marvin.
(11) Students will consider how social norms play a role in the legal meaning of words and actions through a reading of C-Thru Container Corp. v. Midland Manufacturing Co.

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