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Articles 1 - 30 of 31
Full-Text Articles in Law
The Deep Grammar Of Distribution: A Meta-Theory Of Justice, Robert C. Hockett
The Deep Grammar Of Distribution: A Meta-Theory Of Justice, Robert C. Hockett
Robert C. Hockett
No abstract provided.
Review Essay: The Limits Of Their World, Robert C. Hockett
Review Essay: The Limits Of Their World, Robert C. Hockett
Robert C. Hockett
I take a recent monograph on international law, Jack Goldsmith & Eric Posner's "Limits of International Law," as case study in a more general inquiry into the limitations of rational choice and game theoretic accounts of international law. I argue that international law is irreducibly normative in character, and that the task before us is to ensure that it gives expression to the right norms, not to pretend that it gives expression to no norms at all.
Insource The Shareholding Of Outsourced Employees: A Global Stock Ownership Plan, Robert C. Hockett
Insource The Shareholding Of Outsourced Employees: A Global Stock Ownership Plan, Robert C. Hockett
Robert C. Hockett
With the American economy stalled and another federal election campaign season well underway, the “outsourcing” of American jobs is again on the public agenda. Latest figures indicate not only that claims for joblessness benefits are up, but also that the rate of American job-exportation has more than doubled since the last electoral cycle. This year’s political candidates have been quick to take note. In consequence, more than at any time since the early 1990s, continued American participation in the World Trade Organization, in the North American Free Trade Agreement, and in the processes of global economic integration more generally appear …
Were “It” To Happen: Contract Continuity Under Euro Regime Change, Robert Hockett
Were “It” To Happen: Contract Continuity Under Euro Regime Change, Robert Hockett
Robert C. Hockett
No abstract provided.
Reflective Intensions: Two Foundational Decision-Points In Mathematics, Law, And Economics, Robert C. Hockett
Reflective Intensions: Two Foundational Decision-Points In Mathematics, Law, And Economics, Robert C. Hockett
Robert C. Hockett
This Article, transcribed from a symposium talk given by the author, examines two critical junctures at which foundational decisions must be made in three areas of theoretical inquiry - mathematics, law, and economics. The first such juncture is that which the Article labels the "arbitrary versus criterial choice" juncture. This is the decision point at which one must select between what is typically called an "algorithmic," "principled," "law-like," or "intensionalist" understanding of those concepts which figure foundationally in the discipline in question on the one hand, and a "randomized," "combinatorial," or "extensionalist" such understanding on the other hand. The second …
Materializing Citizenship: Finance In A Producers' Republic, Robert C. Hockett
Materializing Citizenship: Finance In A Producers' Republic, Robert C. Hockett
Robert C. Hockett
This invited essay critically assesses a movement of which I consider myself to be part – the movement to “redemocratize” financial institutions in a manner that restores, to non-wealthy citizens, access to basic financial services comparable to those enjoyed by wealthy citizens. I argue that while financial redemocratization of this sort is necessary to the larger project from which it draws most of its meaning – viz that of redemocratizing access to the resources requisite to productive enterprise and meaningful citizenship more generally – it is far from sufficient to this task. We must therefore take special care not to …
Justice In Time, Robert C. Hockett
Justice In Time, Robert C. Hockett
Robert C. Hockett
Challenges raised by the subject of intergenerational justice seem often to be thought almost uniquely intractable. In particular, apparent conflicts between the core values of impartiality and efficiency raised by a large and still growing number of intertemporal impossibility results derived by Koopmans, Diamond, Basu & Mitra, and others have been taken to foreclose fruitful policy assessment done with a view to the distant future. This Essay aims to dispel the sense of bewilderment, pessimism and attendant paralysis that afflicts intertemporal justice assessment. It works toward that end by demonstrating that the most vexing puzzles raised by questions of intergenerational …
Paying Paul And Robbing No One: An Eminent Domain Solution For Underwater Mortgage Debt, Robert C. Hockett
Paying Paul And Robbing No One: An Eminent Domain Solution For Underwater Mortgage Debt, Robert C. Hockett
Robert C. Hockett
In the view of many analysts, the best way to assist “underwater” homeowners — those who owe more on their mortgages than their houses are worth — is to reduce the principal on their home loans. Yet in the case of privately securitized mortgages, such write-downs are almost impossible to carry out, since loan modifications on the scale necessitated by the housing market crash would require collective action by a multitude of geographically dispersed security holders. The solution, this study suggests, is for state and municipal governments to use their eminent domain powers to buy up and restructure underwater mortgages, …
Pareto Versus Welfare, Robert C. Hockett
Pareto Versus Welfare, Robert C. Hockett
Robert C. Hockett
Many normatively oriented economists, legal academics and other policy analysts appear to be "welfarist" and Paretian to at least moderate degree: They deem positive responsiveness to individual preferences, and satisfaction of one or more of the familiar Pareto criteria, to be reasonably undemanding and desirable attributes of any social welfare function (SWF) employed to formulate social evaluations. Some theorists and analysts go further than moderate welfarism or Paretianism, however: They argue that "the Pareto principle" requires the SWF be responsive to individual preferences alone - a position I label "strict" welfarism - and conclude that all social evaluation should in …
“Private” Means To “Public” Ends: Governments As Market Actors, Robert C. Hockett, Saule T. Omarova
“Private” Means To “Public” Ends: Governments As Market Actors, Robert C. Hockett, Saule T. Omarova
Robert C. Hockett
Many people recognize that governments can play salutary roles in relation to markets by (a) “overseeing” market behavior from “above,” or (b) supplying foundational “rules of the game” from “below.” It is probably no accident that these widely recognized roles also sit comfortably with traditional conceptions of government and market, pursuant to which people tend categorically to distinguish between “public” and “private” spheres of activity. There is a third form of government action that receives less attention than forms (a) and (b), however, possibly owing in part to its straddling the traditional public/private divide. We call it the “government as …
From "Mission-Creep" To Gestalt-Switch: Justice, Finance, The Ifis, And The Intended Beneficiaries Of Globalization, Robert C. Hockett
From "Mission-Creep" To Gestalt-Switch: Justice, Finance, The Ifis, And The Intended Beneficiaries Of Globalization, Robert C. Hockett
Robert C. Hockett
No abstract provided.
Bringing It All Back Home: How To Save Main Street, Ignore K Street, And Thereby Save Wall Street, Robert C. Hockett
Bringing It All Back Home: How To Save Main Street, Ignore K Street, And Thereby Save Wall Street, Robert C. Hockett
Robert C. Hockett
No abstract provided.
Bailouts, Buy-Ins, And Ballyhoo, Robert C. Hockett
Bailouts, Buy-Ins, And Ballyhoo, Robert C. Hockett
Robert C. Hockett
The bailout strategy now being pursued by Treasury under the recently authorized Troubled Asset Relief Plan, if “strategy” it can be called, remains obscure and erratic at best. All the while markets remain jittery and credit remains tight, as the underlying source of our present financial jitters—continued decline in the housing market and still mounting foreclosures—goes unaddressed. This piece proposes an interesting and novel approach to solving the financial problem. If it works out, it would eventually minimize the cost to the government.
Taking Distribution Seriously, Robert C. Hockett
Taking Distribution Seriously, Robert C. Hockett
Robert C. Hockett
It is common for legal theorists and policy analysts to think and communicate mainly in maximizing terms. What is less common is for them to notice that each time we speak explicitly of socially maximizing one thing, we speak implicitly of distributing another thing and equalizing yet another thing. We also, moreover, effectively define ourselves and our fellow citizens by reference to that which we equalize; for it is in virtue of the latter that our social welfare formulations treat us as “counting” for purposes of socially aggregating and maximizing. To attend systematically to the inter-translatability of maximization language on …
Legally Defending Mission-Creep: How The Bretton Woods Charters Anticipate And Justify Imf Attention To "Structural" Variables In Its Oversight Of The Global Financial System, Robert C. Hockett
Robert C. Hockett
No abstract provided.
Human Persons, Human Rights, And The Distributive Structure Of Global Justice, Robert C. Hockett
Human Persons, Human Rights, And The Distributive Structure Of Global Justice, Robert C. Hockett
Robert C. Hockett
It is common for economically oriented transnational legal theorists to think and communicate mainly in maximizing terms. It is less common for them to notice that each time we speak explicitly of maximizing one thing, we speak implicitly of distributing another thing and equalizing yet another thing. Moreover, we effectively define ourselves and our fellow humans by reference to that which we equalize. For it is in virtue of the latter that our global welfare formulations treat us as "counting" for purposes of globally aggregating and maximizing. To analyze maximization language on the one hand, and equalization and identification language …
A Federalist Blessing In Disguise: From National Inaction To Local Action On Underwater Mortgages, Robert C. Hockett, John Vlahoplus
A Federalist Blessing In Disguise: From National Inaction To Local Action On Underwater Mortgages, Robert C. Hockett, John Vlahoplus
Robert C. Hockett
While it is widely recognized that the mortgage debt overhang left by the housing price bubble and bust continues to operate as the principal drag upon U.S. macroeconomic recovery, few seem to appreciate just how locally concentrated the problem is. This paper takes the measure of the national mortgage debt overhang problem as a cluster of local problems warranting local action. It then elaborates on one form of such action that the localized nature of the ongoing mortgage crisis justifies - use of municipal eminent domain authority to purchase underwater loans, then modify them in a manner that benefits debtors, …
Valuing The Waiver: The Real Beauty Of Ex Ante Over Ex Post, Robert C. Hockett
Valuing The Waiver: The Real Beauty Of Ex Ante Over Ex Post, Robert C. Hockett
Robert C. Hockett
Irony abounds in connection with demands and proposals made, in the wake of the Enron, Worldcom, and other corporate scandals, that firms be required or encouraged to waive attorney-client privilege. Justice Department officials speak to the importance of "getting at the truth" as trumping firms' interest in confidential internal communications as a prerequisite to compliance with law. They do so notwithstanding their own contrary arguments made on behalf of the secretive Bush administration that employs them. Corporate officers, for their part, speak as though Ralph Nader were the Attorney General when they denounce waiver proposals. They do so notwithstanding the …
Why Paretians Can’T Prescribe: Preferences, Principles, And Imperatives In Law And Policy, Robert C. Hockett
Why Paretians Can’T Prescribe: Preferences, Principles, And Imperatives In Law And Policy, Robert C. Hockett
Robert C. Hockett
Recent years have witnessed two linked revivals in the legal academy. The first is renewed interest in articulating a normative “master principle” by which legal rules might be evaluated. The second is renewed interest in the prospect that a variant of Benthamite “utility” might serve as the requisite touchstone. One influential such variant now in circulation is what the Article calls “Paretian welfarism.” This Article rejects Paretian welfarism and advocates an alternative it calls “fair welfare.” It does so because Paretian welfarism is inconsistent with ethical, social, and legal prescription, while fair welfare is what we have been groping for …
Noncomparabilities & Non Standard Logics, Robert C. Hockett
Noncomparabilities & Non Standard Logics, Robert C. Hockett
Robert C. Hockett
Many normative theories set forth in the welfare economics, distributive justice and cognate literatures posit noncomparabilities or incommensurabilities between magnitudes of various kinds. In some cases these gaps are predicated on metaphysical claims, in others upon epistemic claims, and in still others upon political-moral claims. I show that in all such cases they are best given formal expression in nonstandard logics that reject bivalence, excluded middle, or both. I do so by reference to an illustrative case study: a contradiction known to beset John Rawls's selection and characterization of primary goods as the proper distribuendum in any distributively just society. …
The Macroprudential Turn: From Institutional “Safety And Soundness” To “Systemic Stability” In Financial Supervision, Robert C. Hockett
The Macroprudential Turn: From Institutional “Safety And Soundness” To “Systemic Stability” In Financial Supervision, Robert C. Hockett
Robert C. Hockett
This Working Paper is no longer available. The published version of this article is available at: http://scholarship.law.cornell.edu/facpub/1405/ Since the global financial dramas of 2008-09, authorities on financial regulation have come increasingly to counsel the inclusion of macroprudential policy instruments in the standard ‘toolkit’ of finance-regulatory measures employed by financial supervisors. The hallmark of this perspective is its focus not simply on the safety and soundness of individual financial institutions, as is characteristic of the traditional ‘microprudential’ perspective, but also on certain structural features of financial systems that can imperil such systems as wholes. Systemic ‘financial stability’ thus comes to supplement, …
What The New Treasury Must Do, Robert C. Hockett
What The New Treasury Must Do, Robert C. Hockett
Robert C. Hockett
After a number of heady false starts, against the backdrop of threatened financial catastrophe, Congress and the White House enacted a stopgap financial “bailout”plan early in October 2008. From that point onward the “plan” has repeatedly morphed, morphed again, and morphed back through a string of remarkably fleeting guises. One suspects this dynamic will continue, at least for a while, as a new president and Congress find their footing in the first half of 2009.
What Kinds Of Stock Ownership Plans Should There Be? Of Esops, Other Sops And "Ownership Societies", Robert C. Hockett
What Kinds Of Stock Ownership Plans Should There Be? Of Esops, Other Sops And "Ownership Societies", Robert C. Hockett
Robert C. Hockett
Present-day advocates of an ownership society (OS) do not seem to have noticed the means we have already employed to become an OS where homes and human capital (higher education) are concerned. Nor do they appear to have considered whether these same means - which amount to publicly enhanced private credit markets - might be employed to spread shares in business firms, with a view to completing our OS. This article, the third in a series, seeks tentatively to fill that gap. It does so first by demonstrating how the Employee Stock Ownership Plan, or ESOP, in effect replicates our …
Accidental Suicide Pacts And Creditor Collective Action Problems: The Mortgage Mess, The Deadweight Loss, And How To Get The Value Back, Robert C. Hockett
Accidental Suicide Pacts And Creditor Collective Action Problems: The Mortgage Mess, The Deadweight Loss, And How To Get The Value Back, Robert C. Hockett
Robert C. Hockett
Sustained economic recovery will remain elusive in America, post-crash, until principal is reduced on some 10-13 million underwater home mortgage loans across the nation. Yet in the case of privately securitized loans, these write-downs are all but impossible to carry out on the requisite scale because bubble-era securitization contracts, which now effectively function as suicide pacts among bondholders, would require collective action by millions of geographically dispersed passive investors in order to authorize write-downs or sales out of securitization trusts. The solution, this article suggests, is for state and municipal governments to use their eminent domain powers to buy up …
How The International Financial Institutions Can Help To Win Globalization Of More Stakeholders - By Making More Stockholders, Robert C. Hockett
How The International Financial Institutions Can Help To Win Globalization Of More Stakeholders - By Making More Stockholders, Robert C. Hockett
Robert C. Hockett
No abstract provided.
Domestic Bank Regulation In A Global Environment - A Comparative Dialogue, Robert C. Hockett
Domestic Bank Regulation In A Global Environment - A Comparative Dialogue, Robert C. Hockett
Robert C. Hockett
No abstract provided.
A Jeffersonian Republic By Hamiltonian Means: Values, Constraints & Finance In An Authentic American Ownership Society, Robert C. Hockett
A Jeffersonian Republic By Hamiltonian Means: Values, Constraints & Finance In An Authentic American Ownership Society, Robert C. Hockett
Robert C. Hockett
This article, the second in a trilogy, interprets American ownership-spreading programs past and present under the aspect of a comprehensive theory of "the American ownership society" (OS) developed in its predecessor article, titled Whose Ownership? Which Society? It also identifies what appears to be a significant gap in our efforts to become a comprehensive OS thus far. By early in the 20th century, we had developed and implemented a number of highly innovative and successful programs dedicated to the task of spreading human and nonhuman capital (in the form of arable land in particular) quite broadly. Since about the 1930s, …
Toward A Global Shareholder Society , Robert Hockett
Toward A Global Shareholder Society , Robert Hockett
Robert C. Hockett
No abstract provided.
Minding The Gaps: Fairness, Welfare, And The Constitutive Structure Of Distributive Assessment, Robert C. Hockett
Minding The Gaps: Fairness, Welfare, And The Constitutive Structure Of Distributive Assessment, Robert C. Hockett
Robert C. Hockett
Despite over a century’s disputation and attendant opportunity for clarification, the field of inquiry now loosely labeled “welfare economics” (WE) remains surprisingly prone to foundational confusions. The same holds of work done by many practitioners of WE’s influential offshoot, normative “law and economics” (LE). A conspicuous contemporary case of confusion turns up in recent discussion concerning “fairness versus welfare.” The very naming of this putative dispute signals a crude category error. “Welfare” denotes a proposed object of distribution. “Fairness” describes and appropriate pattern of distribution. Welfare itself is distributed fairly or unfairly. “Fairness versus welfare” is analytically on all fours …
The Impossibility Of A Prescriptive Paretian, Robert C. Hockett
The Impossibility Of A Prescriptive Paretian, Robert C. Hockett
Robert C. Hockett
Most normatively oriented economists appear to be “welfarist” and Paretian to one degree or another: They deem responsiveness to individual preferences, and satisfaction of one or more of the Pareto criteria, to be a desirable attribute of any social welfare function. I show that no strictly “welfarist” or Paretian social welfare function can be normatively prescriptive. Economists who prescribe must embrace at least one value apart from or additional to “welfarism” and Paretianism, and in fact will do best to dispense with Pareto entirely.