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Abstract:
It is widely accepted that property rights are a prerequisite for economic growth. In fact, economists and legal scholars stress the ability of property rights to solve collective action problems, such as the tragedy of the commons and the tragedy of the anticommons. More direct contributions have also been noted. For instance, it has been argued that formal land ownership plays a central role in economic development, and that formal property titles are correlated with an increase in social well-being. When assessing the economic functions of property, it is generally assumed that financial property is as beneficial for economic growth as property over tangible assets. The public policy recipe in this respect would then be to respect property claims over financial assets to the greatest possible extent. However, it is evident that perfect compliance with financial property raises special problems. While natural catastrophes (such as floods, earthquakes, or tsunamis) can damage land holdings and real estate, the working of a market economy by itself cannot annul or reshape real property. By contrast, financial property is subject to the vagaries of economic and political markets. In fact, the respect for financial property can become impossible in the event of a microeconomic crisis (insolvency, bankruptcy, etc.), or a macro-economic one (bank run, crash of stock markets, financial fallout, etc.). In this essay I will discuss five paradigms that can be used in order to restructure financial property under economic crises, particularly those affecting emerging market economies: the emergency paradigm, the monetary paradigm, the valorist paradigm, the social justice paradigm, and the bankruptcy paradigm. The former two have been heavily influenced by decisions of the U.S. Supreme Court. The valorist paradigm is of German origin, and the social justice paradigm can be regarded as an application of the doctrine that private property has a social function, espoused by socialist and Catholic social thought. The last paradigm is a theoretical construct, and has never been used. I will expose the inadequacies of the first four paradigms, both in light of doctrinal analysis and political economy. Finally, I will argue that the bankruptcy paradigm coheres with rule of law principles and minimizes costs in terms of long-term economic growth. More specifically, I will claim that the bankruptcy paradigm can maintain a separation of powers, reduce rent-seeking by small interest groups, and mitigate the overall damage to the financial system caused by the crisis. This paradigm is especially helpful to respond to bank runs in countries that have a currency board or formal dollarization.

financial property

Abstract:
Philosophers and legal theorists still disagree about the correct analysis of 'rights,' both moral and legal. The 'Will Theory' and the 'Interest Theory' - the two main views - can each account for various features of rights, but neither of them is totally satisfactory. The controversy has now been running for decades and seems irresolvable. I will contend in this paper that the discussion of 'value pluralism' in the Berlinian tradition can illuminate the debate over the concept of rights.

Value Pluralism, Rights

Abstract:
Labor law is an offspring of the social and political action of the working class movement. While this movement started its first revolts in seventeenth-century Europe, it was only capable of organizing itself in the nineteenth century when the old laws against combinations were repealed. During this period, socialist ideologues provided the intellectual substratum for the movement to flourish. Thus, in England, Robert Owen inspired the foundation of the Grand National Consolidated Trades Union in 1834, Ferdinand Lassalle founded the General German Workers’ Union in 1863, and the following year Karl Marx was a chief actor in the creation of the International Working Men’s Association, usually called the First International. Governments conceded both democratic and labor law reforms under the pressure of uprisings, and toward the end of the century, when working class parties and trade unions consolidated their power, labor and industrial legislation was an essential feature of European law.

The emergence of American labor law was influenced by socialist ideas as well. It is worth quoting one of the leading experts in labor policies in the interwar period, Walton Hamilton, who served as the first U.S. representative to the International Labor Organization (ILO) in 1935:

The wise organization of wage-earners, by keeping its personnel fairly intact, by imposing restrictions upon entrance to a trade, by using “collective bargaining” in the making of wage contracts, and by seizing the favorable moment for the presentation of its claims,
can secure for its members higher wages than they could otherwise obtain.

Hamilton advocated for a social reform agenda that included, among other things, the social control of business. Even if Hamilton was not an explicit supporter of Marxism, his socialist leanings are undisputable. In effect, Hamilton defended the socialization of corporate property:

If scientific knowledge, discovery, and invention become “public property” after a term of years, there seems no reason why investments in the apparatus of production should not become the property of the community when those whose savings make them possible are fairly paid.

Basically, labor law is a complex bundle of restraints on freedom of contract in the labor markets. According to Henry Farnam’s classification, such legislative measures fall into three different types: protective labor legislation, distributive legislation, and permissive legislation. Protective legislation includes compulsory regulation of the labor contract such as child labor laws, maximum hours laws, and health and safety laws. Today, this type of legislation also encompasses the prohibition of sexual and moral harassment at work and nondiscrimination in recruitment and hiring. Distributive legislation seeks to affect the terms of exchange; for example, compulsory payment in legal tender, minimum wage laws, control of wages, and retirement security. Compensation for arbitrary discharge is often regarded as a distributive measure, but it can also be taken as a piece of protective legislation if it seeks to guarantee fair and humane treatment in the workplace. Finally, permissive legislation facilitates the creation of institutions for concerted worker action, collective bargaining, and labor arbitration.

Abstract:
Labor law is an offspring of the social and political action of the working class movement.

The argument from freedom, Positive freedom, Real freedom, Equity and Social Justice, Noncommodification, Paternalism, Equal Autonomy

Abstract:
Constitutional rights, qua moral rights, give their holders moral procedural rights. These procedural rights have two dimensions: a claim dimension and a response dimension. The claim dimension includes the right to voice grievances for rights violations and to ground the complaints within an adequate institutional setting. The response dimension includes the addressee’s duty to give an impartial and reasoned response to the right holder. The assessment of existing constitutional practices in regard to moral procedural rights must be conducted in terms of whether such rights are adequately embedded in those practices. Constitutional review by a supreme or constitutional court is one adequate arrangement for embodying moral procedural rights. An alternative institutional setting for embodying moral procedural rights can also be considered. This setting is the constitutional jury. While the constitutional jury is a practicable institution and can deliver impartial and reasoned responses at least as well as its judicial counterparts, its greatest advantage is that it respects more fully equal political liberty.

Judicial review, Constitutional review, Juries

Abstract:
This paper is concerned with legal transplantation, that is, the borrowing of legal institutions from foreign jurisdictions. Constitutional trans-plants are a species of legal transplants. By constitutional transplants, I mean both the borrowing of constitutional texts from foreign jurisdictions and the borrowing of judicial doctrines espoused in precedents from foreign supreme courts or constitutional courts. In general, borrowing of precedents is more likely when there has been a prior transplantation of constitutional texts, though this is by no means necessary.

Abstract:
In the paper, I claim that substantive moral rights encompass a procedural right to have rights violations adjudicated by an impartial and independent judge. I elaborate on the principle that it is immoral for anyone to be judge in her own cause, which Hobbes enshrines as natural law 17 in Leviathan and Locke invokes to justify the establishment of civil society in his Second Treatise. I contend that Marshall's argument in Marbury v. Madison can be reconstructed as a logically impeccable argument. Furthermore, I argue that the judicial nullification of congressional acts cannot be considered undemocratic when democracy is understood as the political realization of (1) public deliberation, (2) equality, or (3) liberty. In fact, I underscore the deliberative potential of judicial review and I discuss a counterfactual liberty-based argument in favor of judicial review. Finally, I suggest that judicial review could well be in the hands of a jury elected at random among the whole citizenry, in which case judicial review would be even more egalitarian than a system of unlimited congressional powers.

rights, judicial review, jurisprudence & legal theory