Legal Theory Blog

New Papers on the Net
Here is today’s roundup:

Michael Shumsky (Law Clerk to the Hon. Diarmuid F. O’Scannlain) posts Severability, Inseverability, and the Rule of Law, forthcoming in the Harvard Journal on Legislation. Here is the abstract:
Severability doctrine is intimately connected to a number of critical issues at the heart of the Constitution’s separation of powers, including the debates over competing paradigms of statutory interpretation and interpretive practices (e.g., textualism, dynamic statutory interpretation, the use of legislative history, public choice theory); the appropriate scope of judicial review; non-delegation; and key elements of the Article III jurisdictional requirements. Yet despite its centrality to the balance of powers between courts and the lawmaking branches, severability doctrine has never emerged as a topic of sustained theoretical inquiry. This is a fundamentally troubling oversight.

Using the McCain-Feingold campaign finance reform legislation as a framing device, I argue that the Supreme Court’s current severability jurisprudence is long outdated and that it fails to account for the constitutional requirements within which it must be crafted and the more prudential concerns that ought to animate it. In contrast to current doctrine, which treats severability and inseverability clauses as giving rise only to a rebuttable presumption and relies entirely on textually-extrinsic sources to guide severability determinations, I contend that, when confronted with an unambiguous legislative directive to either sever or entirely invalidate a statute, federal courts are bound by structural and substantive constitutional norms to give full effect to these statutory provisions. When Congress fails to address severability, principles of judicial restraint point toward holding statutes severable in the absence of a countervailing clear statement.

With McCain-Feingold poised to arrive shortly at the Supreme Court – and with a sharp division over severability among the special panel’s judges – the Justices now have a golden opportunity to correct eighty years of fundamentally misguided doctrinal development.

Keywords: severability, inseverability, separation of powers, McCain-Feingold, Bipartisan Campaign Reform Act, BCRA, statutory interpretation, legislative history, public choice, textualism, dynamic statutory interpretation, dynamic interpretation, judicial review, campaign finance, campaign finance reform, clear statement, constitutional, unconstitutional, Article I, Article III, jurisdiction, legislation, legislative intent, interpretation, statutory interpretation, statutory construction, legislative deal, soft money, hard money, contribution limit, rule of law

Robert Bird (Seton Hall University – W. Paul Stillman School of Business) posts Rethinking Wrongful Discharge: A Descriptive-Continuum Approach. From the abstract:

Over two hundred articles have been written critiquing employment at-will and wrongful discharge since 1985. However, little radical change has occurred in state courts on this issue in some time. In spite of strong judicial resistance to modify employment at will, wrongful discharge scholarship is still saturated with normative criticism of the doctrine.
Scholarship in this area can deliver a valued benefit if it focuses on understanding wrongful discharge systematically as a coherent body of law. This article adopts a “descriptive-continuum” approach that organizes wrongful discharge law into five distinct and interrelated categories. This article also provides a sequential, systematic method for classifying employer discharges within the broad continuum of wrongful discharge law. Finally, this article uses a case study to highlight the benefits of the descriptive-continuum approach for courts, employers and employees alike.

Karen Clay (Carnegie Mellon University – H. John Heinz III School of Public Policy and Management) and Gavin Wright (Stanford University – Department of Economics post Order Without Law? Property Rights During the California Gold Rush. From the abstract:

The paper reconsiders the nature of mining districts and property rights during the California gold rush. According to a widely accepted view advanced by Umbeck (1977, 1981), in the absence of effective legal authority, district codes established secure property rights in mining claims. Drawing on a data set of mining district codes and a simple theoretical model, we argue that the main historical features of mining districts may best be understood by viewing them not as enforcers of private property rights, but as institutions for managing access to a nonrenewable resource, in what was fundamentally an open-access context.

Kiwi Alejandro Camara (Harvard) posts Shareholder Voting and the Bundling Problem in Corporate Law. From the abstract:

In this paper, I consider the characteristics, limits and promise of shareholder voting as one of many mechanisms that have evolved to constrain deviance by directors from the maximization of shareholder wealth. Finding the existing menu of control mechanisms imperfect, Professor Lucian Bebchuk and other corporate reformers have suggested an increased power in shareholders to intervene in corporate decisions traditionally reserved to the board of directors. The reformers’ primary argument is that, under present law, directors can bundle decisions on unrelated actions, for instance a decision on payment of dividends with a decision on management’s continued service, thereby limiting the effectiveness of shareholder voting as a control mechanism. I show that this bundling problem is illusory, offer an alternative explanation of the ineffectiveness of shareholder voting and demonstrate that this alternative explanation undercuts the reformers’ policy prescription. I conclude that an increased power of shareholder intervention is unlikely to benefit shareholders.