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Odious Debt Wears Two Faces: Systemic Illegitimacy, Problems, And Opportunities In Traditional Odious Debt Conceptions In Globalized Economic Regimes, Larry Catá Backer Oct 2007

Odious Debt Wears Two Faces: Systemic Illegitimacy, Problems, And Opportunities In Traditional Odious Debt Conceptions In Globalized Economic Regimes, Larry Catá Backer

Law and Contemporary Problems

Backer examines how the traditional notion of odious debt as a method of repudiating sovereign debt may undergo a conceptual revolution as it changes focus from the illegitimacy of governments obtaining loans to the illegitimacy of the systems through which such loans are made and enforced generally. He focus his analysis on the conceptual framework Fidel Castro sought to introduce into the debate about the legitimacy of sovereign debt and the extent to which this reframing might influence international institutional approaches.


Law And Transnational Corruption: The Need For Lincoln’S Law Abroad?, Paul D. Carrington Oct 2007

Law And Transnational Corruption: The Need For Lincoln’S Law Abroad?, Paul D. Carrington

Law and Contemporary Problems

No abstract provided.


Partially Odious Debts?, Omri Ben-Shahar, Mitu Gulati Oct 2007

Partially Odious Debts?, Omri Ben-Shahar, Mitu Gulati

Law and Contemporary Problems

Ben-Shahar borrows from a rich private-law tradition to explore the treatment of odious debt as a problem analogous to allocation of liability in private law. Drawing on the economic analysis of private law, it develops insights as to the structure of an optimal liability scheme. Under this approach, liability is imposed not on the basis of some intrinsic judgment as to the parties' relative blameworthiness, but rather in a forward-looking fashion, on parties who are best suited to take actions to prevent the loss. In addition, liability is imposed on a magnitude tailored to induce an optimal level of precautionary …


Odious Debts Or Odious Regimes, Patrick Bolton, David Skeel Oct 2007

Odious Debts Or Odious Regimes, Patrick Bolton, David Skeel

Law and Contemporary Problems

Odious regimes have always been there. That there is no silver-bullet solution that will prevent odious regimes from arising, or stymie them once they do, is evident from the plethora of responses employed by the international community once a regime's odiousness becomes clear. Current odious debt doctrine dates back to a 1927 treatise by a wandering Russian academic named Alexander Sack. The Sack definition contemplates a debt-by-debt approach to questionable borrowing. If a loan is used to benefit the population--to build a highway or water-treatment plant, for instance--the obligation would be fully enforceable, no matter how pernicious the borrower regime. …


Equitable Subordination, Fraudulent Transfer, And Sovereign Debt, Adam Feibelman Oct 2007

Equitable Subordination, Fraudulent Transfer, And Sovereign Debt, Adam Feibelman

Law and Contemporary Problems

Feibelman focuses on two particular doctrines of lender liability-equitable subordination and fraudulent transfer, expanding upon proposals to employ private domestic law as a strategy for addressing the problem of odious debt. Although doctrines of equitable subordination and fraudulent transfer do not appear to have been applied to sovereign debt by US courts in the past, both should be available to sovereigns' creditors in most if not all US jurisdictions. In addition, he also addresses practical, doctrinal concerns as well as normative implications of employing theories such as equitable subordination and fraudulent transfer to respond to the problem of odious debt. …


Odious, Illegitimate, Illegal, Or Legal Debts—What Difference Does It Make For International Chapter 9 Debt Arbitration?, Kunibert Raffer Oct 2007

Odious, Illegitimate, Illegal, Or Legal Debts—What Difference Does It Make For International Chapter 9 Debt Arbitration?, Kunibert Raffer

Law and Contemporary Problems

Once upon a time, sovereign debts were just that-debts or the entitlement to be repaid fully, including interest. During the 1970s it was thought unnecessary to make any distinctions between debts, based on the assumption that sovereigns might possibly become illiquid, but could never become insolvent. Commercial banks disregarded the most elementary rules of prudent banking, including their duty of due diligence as lenders, laboring on the assumption that whatever flowed into developing countries would eventually flow back with fees and interest. Here, Raffer discusses the international dchapter nine debt arbitration.


Sovereign Debt Restructuring, Odious Debt, And The Politics Of Debt Relief, Robert K. Rasmussen Oct 2007

Sovereign Debt Restructuring, Odious Debt, And The Politics Of Debt Relief, Robert K. Rasmussen

Law and Contemporary Problems

Odious debt is more of a literature than a doctrine. Going back to at least the 1920s, one can find arguments that countries should not have to pay back debts that are labeled "odious." The central intuition is that the citizens of a country should not have to pay for the debts incurred by a prior "odious" regime when those funds did not benefit these citizens. It is simply not right to ask people to pay for funds from which they did not benefit, especially when the lender knew of this fact when it made its loan. Here, Rasmussen comments …


Journal Staff Oct 2007

Journal Staff

Law and Contemporary Problems

No abstract provided.


Journal Staff Jul 2007

Journal Staff

Law and Contemporary Problems

No abstract provided.


Renegotiating The Odious Debt Doctrine, Tai-Heng Cheng Jul 2007

Renegotiating The Odious Debt Doctrine, Tai-Heng Cheng

Law and Contemporary Problems

Following the United States' invasion and subsequent occupation of Iraq,' the US government argued that the successor government in Iraq was not responsible for Iraq's Saddam-era debt under the purported doctrine of odious-regime debt. This purported doctrine apparently excused--by operation of law--all successor regimes from repaying debts that were incurred by oppressive predecessor regimes. Here, Cheng presents three-part response regarding the purported rule that oppressive debts of a predecessor government do not bind its successor.


Foreword, Anne Hazlett Jul 2007

Foreword, Anne Hazlett

Law and Contemporary Problems

No abstract provided.


Odious, Not Debt, Anna Gelpern Jul 2007

Odious, Not Debt, Anna Gelpern

Law and Contemporary Problems

The US invasion of Iraq in 2003 revived public and academic debate about a wobbly old doctrine of international law: the Doctrine of Odious Debt. This doctrine allows governments to disavow debts incurred by their predecessors without the consent of or benefit for the people, provided creditors knew of the taint. It has roots in nineteenth century jostles over colonial possessions. However, for the past eighty years, Odious Debt's rhetorical appeal has vastly outstripped its "legal vitality." Here, Gelpern argues that the Doctrine of Odious Debt frames the problem of odious debt in a way that excludes a large number, …


Odious Debt, Odious Credit, Economic Development, And Democratization, Tom Ginsburg, Thomas S. Ulen Jul 2007

Odious Debt, Odious Credit, Economic Development, And Democratization, Tom Ginsburg, Thomas S. Ulen

Law and Contemporary Problems

When a country signs an international treaty, it is not the government but the state that is bound, and the obligation will stand until a subsequent government formally exits the treaty. Exit is presumed to be costly: a government that "repudiates" earlier treaty obligations will suffer reputational harm in its international relations. Moreover, this general background norm of international law applies as well to debt: a government can announce that it is renouncing debt, but it will suffer severe reputational harm in the debt marketplace, much as a government that repudiates public international law obligations suffers a reputational harm. Here, …


Law, Ethics, And International Finance, Lee C. Buchheit Jul 2007

Law, Ethics, And International Finance, Lee C. Buchheit

Law and Contemporary Problems

Cross-border financial flows can have dramatic effects on the recipients of the money--for good or for ill. This is particularly true in countries whose economies and capital markets are underdeveloped. Moreover, ethical questions about who should receive cross-border financing, in what amounts, for what purposes, and on what conditions have long engaged the attention of international financial institutions such as World Bank, the International Monetary Fund, and the regional development banks. Here, Buchheit analyzes a difficult area where law and ethics have not yet found a happy coexistence--the problem of odious debts.


A Critique Of The Odious Debt Doctrine, Albert H. Choi, Eric A. Posner Jul 2007

A Critique Of The Odious Debt Doctrine, Albert H. Choi, Eric A. Posner

Law and Contemporary Problems

Choi and Posner indicate that it is unclear whether the doctrine will improve the welfare of the population that might be subject to a dictatorship in terms of the odious debt doctrine. The traditional backward-looking defense of the odious debt doctrine, which suggests that the doctrine is costless because it releases a suffering population from an unjust debt, is seriously incomplete. Although in specific cases the benefits of loan sanctions may exceed the costs, the defenders of the doctrine have not made the empirical case that the net benefits are sufficiently high in the aggregate as to warrant routine application …


Insolvency Principles And The Odious Debt Doctrine: The Missing Link In The Debate, A. Mechele Dickerson Jul 2007

Insolvency Principles And The Odious Debt Doctrine: The Missing Link In The Debate, A. Mechele Dickerson

Law and Contemporary Problems

Politicians as well as many members of the international human-rights community, view the odious debt doctrine as fundamentally unfair that the Iraqi people may be saddled with the debts Saddam Hussein's brutal regime incurred. Furthermore, some in the human-rights community generally argue that rich (creditor) countries have a moral duty or obligation to protect citizens of poor (debtor) countries and that richer nations should forgive the debts of poorer nations to help reduce existing inequalities between developed and developing countries. Here, Dickerson evaluates the doctrine of odious debts using the insolvency framework found in the United States Bankruptcy Code.


Devilry, Complicity, And Greed: Transitional Justice And Odious Debt, David C. Gray Jul 2007

Devilry, Complicity, And Greed: Transitional Justice And Odious Debt, David C. Gray

Law and Contemporary Problems

Several issues relating to odious debt and contemporary efforts to expand the odious debt doctrine to cover all debts of odious regimes are maddeningly complex, implicating difficult issues in areas ranging from the international law of state succession to the law of commercial paper--itself a source of biannual trauma for thousands of bar aspirants. However, the scope of the debate as it has been developed in the literature is too narrow and, therefore, the questions posed too simple. In particular, any analysis of odious debt must account for issues that inhere to transitions and transitional justice. Here, Gray make some …


Sovereigns, Trustees, Guardians: Private-Law Concepts And The Limits Of Legitimate State Power, Jedediah Purdy, Kimberly Fielding Jul 2007

Sovereigns, Trustees, Guardians: Private-Law Concepts And The Limits Of Legitimate State Power, Jedediah Purdy, Kimberly Fielding

Law and Contemporary Problems

One major tradition of understanding the powers and duties of sovereigns has particular relevance to arguments for revival and refurbishment of the odious debt doctrine. Here, Purdy and Fielding survey the critical role of private-law concepts in the development of this tradition. In this account, the state is a constructed and purposive legal actor, composed of a set of powers assigned by its subjects for the pursuit of certain human interests and bound by the obligation to secure and respect those interests. Moreover, they narrate that if there are inherent powers in a sovereign, they are only those that are …


The Institutionalist Implications Of An Odious Debt Doctrine, Paul B. Stephan Jul 2007

The Institutionalist Implications Of An Odious Debt Doctrine, Paul B. Stephan

Law and Contemporary Problems

Sovereigns incur debts, and creditors look to the law to hold sovereigns to their obligations. In legal terms, the question is whether to recognize and define an odious debt defense through a treaty or national legislative acts, on the one hand, or through the decisions of authoritative dispute-settlement bodies, whether international arbitral organs or domestic courts. Moreover, others may think that odious debt doctrine as a means can optimize the social welfare generated by sovereign-debt contracts. Here, Stephan examines the social welfare in the economic sense but attacks the problem from a different direction and concludes that no satisfactory mechanism …


Network Stories, Julie E. Cohen Apr 2007

Network Stories, Julie E. Cohen

Law and Contemporary Problems

Proponents of cultural environmentalism, then, need to tackle the normative theory: to formulate a theory of "the network" as a whole that explains what makes it good. Here, Cohen asserts that what makes a network good can only be defined by generating richly detailed ethnographies of the experiences the network enables and the activities it supports, and articulating a normative theory to explain what is good, and worth preserving, about those experiences and activities. Furthermore, generating a normative theory of the open network requires more than a theory of intellectual property or telecommunications, and "doing the science" of cultural environmentalism …


Medical Malpractice Overseas: The Legal Uncertainty Surrounding Medical Tourism, Philip Mirrer-Singer Apr 2007

Medical Malpractice Overseas: The Legal Uncertainty Surrounding Medical Tourism, Philip Mirrer-Singer

Law and Contemporary Problems

Mirrer-Singer explores some of the legal uncertainty surrounding medical tourism specifically in ways medical tourists can seek relief in US courts for malpractice committed abroad and explains why courts probably lack jurisdiction over foreign physicians who have allegedly committed malpractice. Among other things, he discusses theories under which US firms in the medical-tourism business could be held liable for the foreign provider's negligence.


Payment In Credit: Copyright Law And Subcultural Creativity, Rebecca Tushnet Apr 2007

Payment In Credit: Copyright Law And Subcultural Creativity, Rebecca Tushnet

Law and Contemporary Problems

Copyright lawyers talk and write a lot about the uncertainties of fair use and the deterrent effects of a clearance culture on publishers, teachers, filmmakers, and the like, but know less about the choices people make about copyright on a daily basis, especially when they are not working. Here, Tushnet examines one subcultural group that engages in a variety of practices, from pure copying and distribution of others' works to creation of new stories, art, and audiovisual works: the media-fan community. Among other things, she discusses some differences between fair use and fan practices, focused around attribution as an alternative …


The Anarchist In The Coffee House: A Brief Consideration Of Local Culture, The Free Culture Movement, And Prospects For A Global Public Sphere, Siva Vaidhyanathan Apr 2007

The Anarchist In The Coffee House: A Brief Consideration Of Local Culture, The Free Culture Movement, And Prospects For A Global Public Sphere, Siva Vaidhyanathan

Law and Contemporary Problems

Jürgen Habermas' influential historical work, The Structural Transformation of the Public Sphere, describes a moment in the social and political history of Europe in which a rising bourgeoisie was able to gather in salons and cafes to discuss matters of public concern. The public sphere represented a set of sites and conventions in the eighteenth century in which (almost exclusively male) members of the bourgeoisie could forge a third space to mediate between domestic concerns and matters of state. Here, Vaidhyanathan examines one particular Public Sphere experiment--the rise of a global Free Culture Movement that aims to limit the spread …


Journal Staff Apr 2007

Journal Staff

Law and Contemporary Problems

No abstract provided.


Foreword, Lawrence Lessig Apr 2007

Foreword, Lawrence Lessig

Law and Contemporary Problems

No abstract provided.


Cultural Environmentalism And Beyond, James Boyle Apr 2007

Cultural Environmentalism And Beyond, James Boyle

Law and Contemporary Problems

No abstract provided.


Cultural Environmentalism And The Constructed Commons, Molly Shaffer Van Houweling Apr 2007

Cultural Environmentalism And The Constructed Commons, Molly Shaffer Van Houweling

Law and Contemporary Problems

Van Houweling explores both the benefits and failings of conservation easements on land on the one hand and the licensing commons on the other. Conservation easement The tools of cultural environmentalism in the lights of objections to conservation easements and more general concerns with complicated and fragmented property rights are also considered. Among other things, she provides clear theoretical differences between the public domain, where freedom is based on the absence of property rights, and the licensing commons, where freedom is based on the absence on the preemptive exercise of the property rights by the rights holder in order to …


Network Rules, Susan P. Crawford Apr 2007

Network Rules, Susan P. Crawford

Law and Contemporary Problems

Crawford compares the debate between the telcos and the online companies over broadband access regimes often called the "network neutrality" debate to the ongoing tussle between intellectual property maximalists and "free culture" advocates which are strikingly parallel sets of arguments. The maximalists claim that creativity comes from lone genuises (the romantic author) who must be given legal incentives to works but intellectual property scholars have carefully examined the incentives of their arguments and have pointed out that granting overly strong property rights to copyright holders might not be socially appropriate. Moreover, the network providers claim that they (the romantic builders) …


The Invention Of Traditional Knowledge, Madhavi Sunder Apr 2007

The Invention Of Traditional Knowledge, Madhavi Sunder

Law and Contemporary Problems

Sunder argues that the failure of intellectual property to recognize the contributions of traditional and natural sources cannot be rectified by mere payment and she posits a non-monetizable, non-utilitarian benefit in terms of worth or dignity in having one's contribution as the subject labelled of an intellectual property right. Foregrounding the important role of "raw materials" in the process of innovation, cultural environmentalism helped provide a theoretical and political basis for recognition and recompense for the purveyors of those raw materials-often indigenous peoples who have cultivated the earth's biodiversity and who hold "traditional knowledge" about that biodiversity. Moreover, focus on …


The Ends Of Intellectual Property: Health As A Case Study, Arti K. Rai Apr 2007

The Ends Of Intellectual Property: Health As A Case Study, Arti K. Rai

Law and Contemporary Problems

Rai points out the great limitations of some conventional measures of efficiency and cites quality-adjusted life years (QALY), an alternative measure that is actually used in making health-care decisions, as an example. the ability to pay. Quantifying benefits in terms of QALY does not give us a neutral measure of worth, of course but it does expose the value judgments being made and give us a yardstick other than intuition or anecdote for measuring effects. Thus, she argues that rather than giving up on economic analysis, other ways to broaden its scope should be sought.