Georgia Law Professor Lori Ringhand reflects on faculty exchange in Israel

Pleased today to welcome a contribution from Lori A. Ringhand, J. Alton Hosch Professor of Law here at the University of Georgia School of Law. Professor Ringhand concentrates her teaching and scholarship in the areas of constitutional law, election law, and state and local government law – including comparative approaches. She is currently in residence at the University of Aberdeen, Scotland, as a Fulbright Distinguished Chair in Spring 2019. She contributes the post below on her recent faculty exchange experience at Bar-Ilan University in Israel.

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I recently had the pleasure of participating in the faculty exchange between the University of Georgia School of Law and the Bar-Ilan University in Tel Aviv, Israel. This initiative lets faculty members from each school teach a mini-course at the other, as well as providing faculty with the opportunity to spend time sharing ideas and working with their colleagues abroad.

I taught Comparative Constitutional Law to a group of about fifteen law students at Bar-Ilan. Each day involved introductory readings, a short lecture, a group project, and student presentations. My students gave presentations on judicial selection methods, judicial review of executive powers in wartime, and the international law of secession. I learned a great deal, and hope they did as well.

df26b686-af56-4ff9-887a-262b0ccbb8e6I also had the opportunity to talk about my work on the U.S. Supreme Court confirmation process. Despite the dismal reputation of confirmation hearings, my empirical work in this area demonstrates that these hearings play an important role in providing public validation of constitutional change over time. Israel is debating its own high court confirmation process, and I was honored to share my views on the U.S. system on Walla! Global! with anchor Oren Hahari, to do an interview with renowned Israeli journalist Ya’akov Ahimeir, and to lead a research seminar with the Bar-Ilan faculty. It was fun – and challenging – to defend my views in the wake of the hotly contested Kavanaugh hearings.

IMG_0036The highlight of the trip, though, was a weekend trip Jerusalem. I had never visited this part of the world, and touring such an ancient city was an unforgettable experience. The religious and cultural significance of the city is obvious, and seeing such a mix of cultures and peoples figuring out how to share their holy lands was an extraordinary experience. History really does come to life in places like Jerusalem, and I am grateful to the Dean Rusk International Law Center and Bar-Ilan University for making my trip possible.

Georgia Law Professor Christopher Bruner takes part in financial regulation conference in Singapore

Christopher Bruner, Stembler Family Distinguished Professor in Business Law here at the University of Georgia School of Law, took part in two panels at a conference entitled “Financial Services Law and Regulation in Singapore.” Hosting the February 28-March 1 conference was the Centre for Banking & Finance Law at the National University of Singapore Faculty of Law.

On the conference’s 1st day, Bruner presented on “Development of Financial Services in a Globalising Financial World,” focusing his remarks on the framework developed in his 2016 Oxford University Press book, Re-Imagining Offshore Finance. (prior post). Bruner also participated in the reflections panel that concluded the conference.

Occasioning the conference was the the publication of Financial Services Law and Regulation (Academy Publishing, 2019), edited by Dora Neo, Hans Tjio, and Luh Luh Lan, and featuring Singapore-based contributors. Professor Bruner and others from abroad provided global and comparative context.

Georgia Law Professor Kent Barnett compares administrative law approaches at conference in Poland


Pleased today to welcome a contribution from Kent Barnett, J. Alton Hosch Associate Professor of Law here at the University of Georgia School of Law. Professor Barnett concentrates his teaching and scholarship in the areas of contracts law, consumer law, and administrative law—including comparative approaches. He contributes the post below on his recent collaboration with European counterparts on the panel above, at a conference in Poland.

In what may come as a surprise for many American administrative law scholars, the world extends beyond Washington, D.C.

These scholars rarely consider comparative approaches to administrative law or debates in other legal systems. Perhaps they can be forgiven because of the ever-increasing complexity of domestic administrative law. But as conservative and liberal political and judicial factions contest an increasing number of longstanding tenants of domestic administrative law, comparative inquires may prove more useful and timely than ever.

I confirmed this intuition recently, when I accepted an invitation to participate in a conference concerning “Judicial Deference in Competition Law,” sponsored by the Centre for Antitrust and Regulatory Studies at the University of Warsaw this month. Taking part in a panel that considered general aspects of deference law, I discussed my research into the theoretical and doctrinal foundations of how American courts defer to administrative agencies’ determinations. My co-panelists—Drs. Mira Scholten and Rob Widdershoven, both professors at the Netherlands’ University of Utrecht—discussed deference in European Union courts or theoretical models for understanding deference in most legal systems.

Most of the legal models (whether of the EU, national European courts, or U.S. courts) follow similar paths when approaching how and whether to defer to agencies. In many instances, the terminology differs or the boundaries for similar doctrines may vary slightly. But in the main, these disparate legal systems have largely reached consensus on certain matters: deference to factual findings for technical matters and deference to discretionary decisions.

But my interactions with scholars in Poland confirmed that the European model has some striking differences from the American system—differences that inform two current debates:

► One difference, as numerous panelists mentioned during the conference, is that European models distinguish between civil and “criminal” punishments. “Criminal” matters are significant agency actions, such as large fines, which require significantly more judicial oversight. American law, in contrast, does not meaningfully distinguish between insignificant and significant agency actions against regulated parties. Perhaps doing so, however, would assuage growing concerns over U.S. regulatory agencies’ ability to fine regulated parties or deprive them of necessary business licenses, especially when regulated firms demonstrate good faith attempts at regulatory compliance.

► A second difference is that European courts do not defer to agencies’ interpretations of law. American courts, on the other hand, defer under the well-known Chevron doctrine to agencies’ reasonable interpretations of ambiguous statutory provisions. The European experience suggests that whatever Chevron’s constitutional or statutory demerits, deference to agency legal interpretations is not inevitable. Instead, it is a chosen policy or jurisprudential choice whose benefits or demerits support or cut against it.

In short, the conference represents but the beginning of comparative conversations that U.S. administrative scholars can and should have to inform debates about domestic administrative law.

Professor Bruner compares UK, US business practices in new “Research Handbook on Fiduciary Law”

Christopher M. Bruner, J. Alton Hosch Professor of Law here at the University of Georgia School of Law, has just published “Opting Out of Fiduciary Duties and Liabilities in U.S. and U.K. Business Entities.” It appears as a chapter in a 2018 Edward Elgar volume, entitled Research Handbook on Fiduciary Law, and edited by D. Gordon Smith, Dean and Glen L. Farr Professor of Law at Brigham Young University’s J. Reuben Clark Law School,  and Andrew S. Gold, Professor of Law at DePaul University College of Law.

Here’s the SSRN abstract for Bruner’s contribution:

This chapter explores the extent of contractual freedom to opt out of fiduciary duties and liabilities in U.S. and U.K. business entities, including the U.S. corporation, general partnership, limited partnership, limited liability partnership, and limited liability company, and the U.K. limited company, general partnership, limited partnership, and limited liability partnership.

Discernible commonalities emerge from this comparative analysis. Notably, corporate law readily permits reducing liability exposure for breaches of duty in each jurisdiction, yet provides only quite limited capacity to carve back at the substance of the duties themselves. Meanwhile, unincorporated entities in each jurisdiction offer substantially greater latitude to limit the duties themselves, in some cases resulting in purely contractual business relationships.

Yet substantial differences are also apparent. U.S. corporate law permits greater insulation from liability exposure, and U.S. unincorporated entities generally provide clearer and more extensive latitude to eliminate default duties of loyalty and care outright (particularly in Delaware). One cannot comprehensively declare that U.S. law universally deviates further from the “fiduciary” governance paradigm, however, because the U.K. limited liability partnership has gone further by providing an entity form in which no such general default duties apply at all.

The analysis raises some complex comparative questions, and the chapter closes with brief reflections on why such trends, commonalities, and divergences may have arisen.

Associate Dean Lori Ringhand wins Fulbright Distinguished Chair at University of Aberdeen in Scotland

Delighted to announce that Lori A. Ringhand, Associate Dean for Academic Affairs and J. Alton Hosch Professor of Law here at the the University of Georgia School of Law, has been awarded a Fulbright Distinguished Chair for Spring 2019, when she will be in residence at the University of Aberdeen, Scotland. While overseas, she also will present a Fulbright Gresham College Lecture.

A scholar whose expertise includes comparative constitutional law, Ringhand earned a B.C.L. in European and Comparative Law from Oxford University in England, and a J.D. from the University of Wisconsin Law School. She plans to spend the semester researching U.S. and British approaches to campaign finance regulation.

Professor Bruner presents on corporate law and corporate governance at international conference in England

“Contextual Corporate Governance: Tailoring Board Independence Rules by Industry” is the title of the presentation that our Christopher Bruner, J. Alton Hosch Professor of Law at the University of Georgia School of Law, delivered Monday at the annual International Corporate Governance and Law Forum, held this year in England.

Hosted by the Centre for Business Law and Practice at the University of Leeds School of Law and cosponsored by Deakin Law School of Australia and the Alexander von Humboldt Foundation, the 2-day event brought together law and business scholars from around the world to discuss corporate board composition and process.

Bruner, a member of our Dean Rusk International Law Center Council, was among the 20 or so scholars who presented, from Australia, China, England, France, Japan, Norway, and the United States. Here’s the description of his paper:

Over recent decades, several commercially prominent jurisdictions have increasingly required that listed company boards, and certain committees, consist primarily of ‘independent’ (i.e. non-executive) directors. In the United States, for example, the Sarbanes-Oxley Act and the Dodd-Frank Act respectively require that a listed company’s audit and compensation committees be entirely independent. NYSE and NASDAQ rules go further, requiring that a majority of the whole board be independent. Such requirements reflect the prevailing view that independent directors protect minority shareholder interests through greater objectivity and practical capacity to monitor and resist domineering CEOs. That such benefits outweigh the costs – notably, limited information (relative to executive directors) – is assumed.

Recent empirical work, however, increasingly casts doubt on this assumption – at least in certain contexts. While empirical studies initially found little evidence that director independence rules impact corporate performance at all, more recent studies focusing on the cost of acquiring company-specific information suggest that the impacts of such rules are far from uniform. Indeed, mounting evidence suggests that such rules may improve performance where company-specific information can be acquired at low cost, yet harm performance where the cost of information acquisition is high. These findings – commending sensitivity to industry context – dovetail with a parallel body of post-crisis studies associating board independence (and other shareholder-centric governance structures) with potentially undesirable risk-taking incentives in certain industries – notably, finance.

These perspectives offer much-needed nuance to our thinking about corporate governance reform, strongly suggesting that one-size-fits-all rules mandating uniform board structures across the universe of listed companies may widely miss the mark in important contexts. This paper will discuss the history of such reforms, canvass relevant legal and financial literatures, and explore regulatory strategies for more targeted reforms on an industry-by-industry basis.

“Judicial Federalism in the European Union,” new article by Professor Wells

Professor Michael Lewis Wells, who holds the Marion and W. Colquitt Carter Chair in Tort and Insurance Law here at the University of Georgia School of Law, has published an article comparing judicial practice in Europe and the United States. Entitled “Judicial Federalism in the European Union,” it appears at 54 Houston Law Review Winter ​697 (2017).

The manuscript, which forms part of our Dean Rusk International Law Center Research Paper Series at SSRN, may be downloaded at this SSRN link.

Here’s the abstract:

This article compares European Union judicial federalism with the American version. Its thesis is that the European Union’s long-term goal of political integration probably cannot be achieved without strengthening its rudimentary judicial institutions. On the one hand, the EU is a federal system in which judicial power is divided between EU courts, of which there are only three, and the well-entrenched and longstanding member state court systems. On the other hand, both the preamble and Article 1 of the Treaty of Europe state that an aim of the European Union is “creating an ever closer union among the peoples of Europe.” The article argues that central government courts and member state courts are not fungible. In close cases, the latter are more likely than the former to favor the member state’s interests. The EU’s approach to judicial federalism, with its heavy reliance on member state courts, will retard the political integration envisioned by the Treaty. The article develops this thesis by comparing EU judicial federalism with the American variant, which differs from the EU system in two key respects: First, most issues of EU law are adjudicated in the member state courts. In the U.S., a network of lower federal courts adjudicates many federal law issues. Second, the U.S. Supreme Court reviews state court judgments that turn on issues of federal law. The Court of Justice of the European Union does not review member state judgments, even on issues of EU law. The article argues that these aspects of the federal system in the U.S. were indispensable to achieving and maintaining national unity. If the EU aspires to a similar level of political integration, their absence may prove to be a significant obstacle.