Law Commons^™

Military Professionals As Guardians Of The Republic: The Hidden Promise Of Huntington’S The Soldier And The State, Robert E. Atkinson Jr.

Robert E. Atkinson Jr.

This paper is the first step in developing a neo-classical theory of the military officer corps as a functionalist profession. It unpacks the central paradox of Samuel P. Huntington’s The Soldier and the State: Why does an account that begins with a call for a highly professionalized officer corps to obey the orders of any legally legitimate civilian regime end with the promise that humanity can achieve both security and redemption if all the nations of the world adopt core military values? How can “militarize the military,” Huntington’s solution to the classical question of civilian/ military relations – Plato’s …

Philanthropy's Function: A Neo-Classical Reconsideration, Robert E. Atkinson Jr.

Robert E. Atkinson Jr.

This essay lays the groundwork for a “new unified field theory” of philanthropy. That theory must have two complementary parts, an account of philanthropy’s core function and a measure of its performance, a metric for comparing philanthropic organizations both among themselves and with their counterparts in the for-profit, governmental, and household sectors. The essay first explains the need for such a measure, in both theory and practice. It then considers the critical shortcomings of today’s standard theory of philanthropy, which accounts for the philanthropic sector as subordinate and supplementary to our capitalist market economy and liberal democratic polity. Chief among …

Re-Focusing On Philanthropy: Revising And Re-Orienting The Standard Model, Robert E. Atkinson Jr.

Robert E. Atkinson Jr.

This paper undertakes a detailed analysis of today’s standard theory of the philanthropic sector, in order to provide a new model that is both more accurate in its details and more comprehensive in its scope. The standard theory accounts for the philanthropic sector as subordinate and supplementary to our capitalist market economy and liberal democratic polity. That approach has two basic short-comings: Its explanation of both the state and philanthropy as adjuncts to the market fails to appreciate the ways in which all three sectors support and supplement each other. Even more basically, the standard model’s primary focus on the …

Tax Favors For Philanthropy: Should Our Republic Underwrite De Tocqueville's Democracy?, Robert E. Atkinson Jr.

Robert E. Atkinson Jr.

ABSTRACT This article critically reviews the current rationales for the federal income tax system’s favorable treatment of philanthropy, gives those rationales a new descriptive synthesis based on de Tocqueville’s account of American democracy, and offers a normative alternative based on neo-classical ethical and political theory. It first identifies the two basic normative questions: What is the function of philanthropy that warrants favorable tax treatment, and how well does favorable tax treatment advance that function? It then examines the answers of three distinct phases of normative tax theory: the traditional subsidy thesis, the antithetical technical definition of income theory, and a …

Sea Captains And Philosopher Kings: Melville's Billy Budd And Plato's Republic, Robert E. Atkinson Jr.

Robert E. Atkinson Jr.

This article shows how Melville’s Billy Budd, rightly one of law and literature’s most widely studied canonical texts, answers Plato’s challenge in Book X of the Republic: Show how “poets” create better citizens, especially better rulers, or banish them from the commonwealth of reasoned law. Captain Vere is a flawed but instructive version of the Republic’s philosopher-king, even as his story is precisely the sort of “poetry” that Plato should willingly allow, by his own republican principles, into the ideal polity. Not surprisingly, the novella shows how law’s agents must be wise, even as their law must be philosophical, if …

Philanthropy's Future: Questioning Today's Orthodoxies, Re-Affirming Yesterday's Foundations, Robert E. Atkinson Jr.

Robert E. Atkinson Jr.

This article maps a way beyond an impasse in today’s treatment of philanthropy in both theory and law by taking us back to philanthropy’s core function, uplifting our neediest and advancing our best. The standard academic model of philanthropy sees it as subordinate and supplemental to our society’s other public sectors, the market and the state, and uses their metrics, aggregate consumer demand and majority voter preference, to measure philanthropy’s performance. Thus the standard model gives us, as individuals and as a society, no single measure of philanthropy’s traditional goal, the public good, besides consumer and voter preference. This article …

Neoclassical Professionalism In Law And Business, Robert E. Atkinson Jr.

Robert E. Atkinson Jr.

This paper offers a neo-classical approach to corporate reform: Remodeling the private practice of corporate law and the management of for-profit business to make both occupations better serve, together, their proper public functions. Without dismissing the recent focus of reform on external regulation of corporations or internal restructuring of corporate governance, this paper seeks the foundation for a different approach, encouraging corporate managers and lawyers as professionals to serve their occupation’s correlate values: prosperity and justice. This focus on the primary agents of modern capitalism, corporate managers and lawyers, responds both to early management reformers like Brandeis in the U.S. …

Medicine And Law As Model Professions: The Heart Of The Matter (And How We Have Missed It), Robert E. Atkinson Jr.

Robert E. Atkinson Jr.

This article has two coordinate goals: to undergird the functionalist understanding of professionalism with classical normative theory and to advance the classical theory of civic virtue with the insights of modern social science. More specifically, this article seeks to connect classical theories about the care of the body and the soul with modern theories of market and government failure. The first step is to distinguish two kinds of professions, caring professions like medicine and public professions like law, by identifying the distinctive virtue of each. The distinctive virtue of the caring professions is single-minded commitment to those in their care, …

Sea Captains And Philosopher Kings: Melville's Billy Budd And Plato's Republic, Robert E. Atkinson Jr.

Robert E. Atkinson Jr.

This article shows how Melville’s Billy Budd, rightly one of law and literature’s most widely studied canonical texts, answers Plato’s challenge in Book X of the Republic: Show how “poets” create better citizens, especially better rulers, or banish them from the commonwealth of reasoned law. Captain Vere is a flawed but instructive version of the Republic’s philosopher-king, even as his story is precisely the sort of “poetry” that Plato should willing allow, by his own republican principles, into the ideal polity. Not surprisingly, the novella shows how law’s agents must be wise, even as their law must be philosophical, if …

Sea Captains And Philosopher Kings: Melville's Billy Budd And Plato's Republic, Robert E. Atkinson Jr.

Robert E. Atkinson Jr.

This article shows how Melville’s Billy Budd, rightly one of law and literature’s most widely studied canonical texts, answers Plato’s challenge in Book X of the Republic: Show how “poets” create better citizens, especially better rulers, or banish them from the commonwealth of reasoned law. Captain Vere is a flawed but instructive version of the Republic’s philosopher-king, even as his story is precisely the sort of “poetry” that Plato should willing allow, by his own republican principles, into the ideal polity. Not surprisingly, the novella shows how law’s agents must be wise, even as their law must be philosophical, if …

Assessing The Foundations Of Neo-Classical Professionalism In Law And Business, Robert E. Atkinson Jr.

Robert E. Atkinson Jr.

This paper offers a neo-classical approach to corporate reform: Remodeling the private practice of corporate law and the management of for-profit business to make both occupations better serve, together, their proper public functions. Without dismissing the recent focus of reform on external regulation of corporations or internal restructuring of corporate governance, this paper seeks the foundation for a different approach, encouraging corporate managers and lawyers as professionals to serve their occupation’s correlate values: prosperity and justice. This focus on the primary agents of modern capitalism, corporate managers and lawyers, responds both to early management reformers like Brandeis in the U.S. …

The Future Of Philanthropy: Questioning Today's Orthodoxies, Re-Affirming Yesterday's Foundations, Robert E. Atkinson Jr.

Robert E. Atkinson Jr.

This article maps a way beyond an impasse in today’s treatment of philanthropy in both theory and law by taking us back to philanthropy’s core function, uplifting our neediest and advancing our best. The standard academic model of philanthropy sees it as subordinate and supplemental to our society’s other public sectors, the market and the state, and uses their metrics, aggregate consumer demand and majority voter preference, to measure philanthropy’s performance. Thus the standard model gives us, as individuals and as a society, no single measure of philanthropy’s traditional goal, the public good, besides consumer and voter preference. This article …

Tax Favors For Philanthropy: Should Our Republic Underwrite De Tocqueville's Democracy?, Robert E. Atkinson Jr.

Robert E. Atkinson Jr.

This article critically reviews the current rationales for the federal income tax system’s favorable treatment of philanthropy, gives those rationales a new descriptive synthesis based on de Tocqueville’s account of American democracy, and offers a normative alternative based on neo-classical ethical and political theory. It first identifies the two basic normative questions: What is the function of philanthropy that warrants favorable tax treatment, and how well does favorable tax treatment advance that function? It then examines the answers of three distinct phases of normative tax theory: the traditional subsidy thesis, the antithetical technical definition of income theory, and a set …

Tax Favors For Philanthropy: Should Our Republic Underwrite De Tocqueville's Democracy?, Robert E. Atkinson Jr.

Robert E. Atkinson Jr.

ABSTRACT This article critically reviews the current rationales for the federal income tax system’s favorable treatment of philanthropy, gives those rationales a new descriptive synthesis based on de Tocqueville’s account of American democracy, and offers a normative alternative based on neo-classical ethical and political theory. It first identifies the two basic normative questions: What is the function of philanthropy that warrants favorable tax treatment, and how well does favorable tax treatment advance that function? It then examines the answers of three distinct phases of normative tax theory: the traditional subsidy thesis, the antithetical technical definition of income theory, and a …

Re-Focusing On Philanthropy: Revising And Re-Orienting The Standard Model, Robert E. Atkinson

Robert E. Atkinson Jr.

This paper undertakes a detailed analysis of today’s standard theory of the philanthropic sector, in order to provide a new model that is both more accurate in its details and more comprehensive in its scope. The standard theory accounts for the philanthropic sector as subordinate and supplementary to our capitalist market economy and liberal democratic polity. That approach has two basic short-comings: Its explanation of both the state and philanthropy as adjuncts to the market fails to appreciate the ways in which all three sectors support and supplement each other. Even more basically, the standard model’s primary focus on the …

Philanthropy's Function: A Neo-Classical Reconsideration, Robert E. Atkinson

Robert E. Atkinson Jr.

This essay lays the groundwork for a “new unified field theory” of philanthropy. That theory must have two complementary parts, an account of philanthropy’s core function and a measure of its performance, a metric for comparing philanthropic organizations both among themselves and with their counterparts in the for-profit, governmental, and household sectors. The essay first explains the need for such a measure, in both theory and practice. It then considers the critical shortcomings of today’s standard theory of philanthropy, which accounts for the philanthropic sector as subordinate and supplementary to our capitalist market economy and liberal democratic polity. Chief among …

Philanthropy's Future: Questioning Today’S Orthodoxies, Re-Affirming Yesterday’S Foundations, Robert E. Atkinson

Robert E. Atkinson Jr.

This article maps a way beyond an impasse in today’s treatment of philanthropy in both theory and law by taking us back to philanthropy’s core function, helping the neediest among us and promoting the highest achievements of our best. The standard academic model of philanthropy sees it as subordinate and supplemental to our society’s other public sectors, the market and the state, and uses their metrics, aggregate consumer demand and majority voter preference, to measure philanthropy’s performance. The standard model gives us, as individuals and as a society, no single measure of philanthropy’s traditional goal, the public good, besides consumer …

Philanthropy And The Federal Income Tax: Should Our Republic Underwrite De Tocqueville's Democracy?, Robert E. Atkinson

Robert E. Atkinson Jr.

This article critically reviews the current rationales for the federal income tax system’s favorable treatment of philanthropy, gives those rationales a new descriptive synthesis based on de Tocqueville’s account of American democracy, and offers a normative alternative based on neo-classical ethical and political theory. It first identifies the two basic normative questions: What is the function of philanthropy that warrants favorable tax treament, and how well does favorable tax treatment advance that function? It then examines the answers of three distinct phases of normative tax theory: the traditional subsidy thesis, the antithetical technical definition of income theory, and a set …

Averting The Captain Vere “Veer”: Billy Budd As Melville’S Republican Response To Plato, Robert E. Atkinson

Robert E. Atkinson Jr.

This article shows how Melville’s Billy Budd, rightly one of law and literature’s most widely studied canonical texts, answers Plato’s challenge in Book X of the Republic: Show how “poets” create better citizens, especially better rulers, or banish them from the commonwealth of reasoned law. Captain Vere is a flawed but instructive version of the Republic’s philosopher-king, even as his story is precisely the sort of “poetry” that Plato should willing allow, by his own republican principles, into the ideal polity. Not surprisingly, the novella shows how law’s agents must be wise, even as their law must be philosophical, if …

Assessing The Foundations Of Neo-Classical Professionalism In Law And Business: Remodeling The Temple, Phase I, Robert E. Atkinson

Robert E. Atkinson Jr.

Both the management of private enterprise and the practice of corporate law must be radically remodeled if they are properly to serve their correlate values: prosperity and justice. In that remodeling, the cornerstone of professional status would be appreciation of the deepest values of our common culture, gained through liberal education in the humanities and social sciences. Lawyers and managers need this appreciation because, under the best available institutional arrangements, they together must actively shape our public world, both in the law and in the market, for the common welfare.

The professional’s requisite cultural appreciation has two essential components, one …

Remodeling The Temple, Phase I: Assessing The Foundations Of Neo-Classical Professionalism In Law And Business, Robert E. Atkinson

Robert E. Atkinson Jr.

Abstract

Both the management of private enterprise and the practice of corporate law must be radically remodeled if they are properly to serve their correlate values: prosperity and justice. In that remodeling, the cornerstone of professional status would be appreciation of the deepest values of our common culture, gained through liberal education in the humanities and social sciences. Lawyers and managers need this appreciation because, under the best available institutional arrangements, they together must actively shape our public world, both in the law and in the market, for the common welfare.

The professional’s requisite cultural appreciation has two essential components, …

Sea Captains And Philosopher Kings: Melville's Billy Budd And Plato's Republic, Robert E. Atkinson

Robert E. Atkinson Jr.

Abstract

This article shows how Melville’s Billy Budd, rightly one of law and literature’s most widely studied canonical texts, answers Plato’s challenge in Book X of the Republic: Show how “poets” create better citizens, especially better rulers, or banish them from the commonwealth of reasoned law. Captain Vere is a flawed but instructive version of the Republic’s philosopher-king, even as his story is precisely the sort of “poetry” that Plato should willing allow, by his own republican principles, into the ideal polity. Not surprisingly, the novella shows how law’s agents must be wise, even as their law must be philosophical, …

Sea Captains And Philospher Kings: Melville's Billy Budd And Plato's Republic, Robert E. Atkinson

Robert E. Atkinson Jr.

This article shows how Melville’s Billy Budd, rightly one of law and literature’s most widely studied canonical texts, answers Plato’s challenge in Book X of the Republic: Show how “poets” create better citizens, especially better rulers, or banish them. Captain Vere is a flawed but instructive version of the Republic’s philosopher-king, even as his story is precisely the sort of “poetry” that Plato should willing allow, by his own republican principles, into the ideal polity. Not surprisingly, the novella shows how law’s agents must be wise, even as their law must be philosophical, if they are to do justice. Paradoxically, …

Obedience As The Foundation Of Fiduciary Duty, Robert E. Atkinson

Robert E. Atkinson Jr.

Conventional theory holds that the fiduciary relationship comprises two fundamental duties, care and loyalty. This paper argues that a third duty, obedience, is more basic, the foundation on which the duties of care and loyalty ultimately rest. In place of the prevailing dualistic theory of fiduciary duty, it offers a trinitarian alternative. As the trinitarian metaphor implies, the claim here is that, properly understood, three identifiably different elements are functionally distinct yet essentially one.

The paper itself has three parts. The first, descriptive part distinguishes the duty of obedience from its derivatives, care and loyalty; identifies a strong and a …