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.

Professor Wells publishes review of book on torts harmonization in Europe

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 posted “Harmonizing European Tort Law and the Comparative Method: Basic Questions of Tort Law from a Comparative Perspective” at SSRN. The review of a book by a Viennese torts scholar is forthcoming in volume 9 of the peer-reviewed Journal of Civil Law Studies.

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

Here’s the abstract:

This is a book review of Basic Questions of Tort Law from a Comparative Perspective, edited by Professor Helmut Koziol. This book is the second of two volumes on “basic questions of tort law.” In the first volume, Professor Helmut Koziol examined German, Austrian, and Swiss tort law. In this volume Professor Koziol has assembled essays by distinguished scholars from several European legal systems as well as the United States and Japan, each of whom follows the structure of Koziol’s earlier book and explains how those basic questions are handled in their own systems.

This review focuses on Professor Koziol’s ultimate aim of harmonization, and on the contribution of these essays to that project. Harmonization of tort law across the member states is not just a matter of working out answers to such questions as the content of the liability rule or whether non-pecuniary harm should be recoverable. Harmonization raises an issue of European Union federalism. That question is not explicitly addressed in either volume, yet the value of the project, and prospects for its success, turn on the answer to it. I argue that Professor Koziol has not made a convincing case for EU displacement of member state tort law.

International courts studied in new volume co-edited by Professor Cohen

Harlan Grant Cohen, the Gabriel M. Wilner/UGA Foundation Professor in International Law here at the University of Georgia School of Law, has just posted at SSRN “Introduction: Legitimacy and the Courts”, the opening segment of a forthcoming  Cambridge University Press volume. Institutions treated in subsequent chapters include the International Court of Justice, the World Trade Organization, the International Centre for the Settlement of Investment Disputes, and the European Court of Human Rights.

Cohen co-edited the forthcoming essay collection, entitled Legitimacy and International Courts, with Baltimore Law Professor Nienke Grossman, Deputy Director of her law school’s Center for International and Comparative Law, and two Oslo Law professors who co-direct that university’s PluriCourts project, Andreas Føllesdal and Geir Ulfstein.

The “Introduction” manuscript, which forms part of our Dean Rusk International Law Center Research Paper Series at SSRN, may be downloaded here.

Here’s the abstract:

Legitimacy and International Courts examines the underpinnings of legitimacy, or the justification of the authority, of international courts and tribunals. It brings together an esteemed group of authors, noted for both their expertise in individual courts, tribunals, or other adjudicatory bodies, and their work on legitimacy, effectiveness, and governance more broadly, to consider the legitimacy of international courts from a comparative perspective. Authors explore what strengthens and weakens the legitimacy of various different international courts, while also considering broader theories of international court legitimacy. Some chapters highlight the sociological or normative legitimacy of specific courts or tribunals, while others address cross-cutting issues such as representation, democracy, independence and effectiveness.

This Introduction surveys some of the key contributions of this volume and distills some of the lessons of its varied chapters for the legitimacy of international courts. Parts II and III are largely conceptual in approach, exploring what legitimacy means for each and all of the courts. Part IV takes a more functional approach, exploring how various factors internal or external to particular courts have contributed to those courts’ normative or sociological legitimacy. Part V provides thumbnail summaries of each the chapters that follow.