Category: Commentary

Narrow Banking as a Structural Remedy for the Problem of Systemic Risk: A Comment on Professor Schwarcz’s Ring-Fencing – Postscript (Comment) by Arthur E. Wilmarth, Jr.

From Volume 88, Number 1 (November 2014)
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In Ring-Fencing, Professor Steven Schwarcz provides an insightful overview of the concept of “ring-fencing” as a “potential regulatory solution to problems in banking, finance, public utilities, and insurance.” As Professor Schwarcz explains, “ring-fencing can best be understood as legally deconstructing a firm in order to more optimally reallocate and reduce risk.” Ring-fencing has gained particular prominence in recent years as a strategy for limiting the systemic risk of large financial conglomerates (also referred to herein as “universal banks”). Professor Schwarcz describes several ring-fencing plans that have been adopted or proposed in the United States, United Kingdom, and European Union.

This Comment argues that “narrow banking” is a highly promising ring-fencing remedy for the problems created by universal banks. Narrow banking would strictly separate the deposit-taking function of universal banks from their capital markets activities. If properly implemented, narrow banking could significantly reduce the safety net subsidies currently exploited by large financial conglomerates and thereby diminish their incentives for excessive risk-taking.

 

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Can Congress Make You Buy Broccoli? And Why It Really Doesn’t Matter – Postscript (Comment) by David Orentlicher

From Volume 84, Number 1 (November 2010)
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Critics of the individual mandate to purchase health care insurance make a simple but seemingly compelling argument. If the federal government can require people to buy insurance because that would be good for their health, then the government can require people to buy all sorts of things that are good for their health, like broccoli or membership in an exercise club.

To avoid the prospect of the ultimate nanny state, U.S. district court judges in Florida and Virginia concluded that while the federal government may regulate economic activity, it may not regulate economic inactivity. Thus, once you decide to purchase health care insurance, the government can regulate the terms of your insurance policy. However, you cannot be forced to purchase the policy in the first place. To breach the activity-inactivity line, wrote Judge Roger Vinson, would invite all kinds of well-intended, but liberty-destroying, laws.

 

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The Nonconstitutional Character of Ineffective Assistance of Counsel Claims in Immigration Proceedings: A Brief Comment on Afanwi v. Mukasey – Postscript (Comment) by Patrick J. Glen

From Volume 82, Number 1 (November 2008)
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On May 19, 2008, the United States Court of Appeals for the Fourth Circuit held that an alien was foreclosed from establishing that alleged ineffective assistance of counsel deprived him of his right to due process, as aliens do not possess any constitutional right to effective assistance of counsel in immigration proceedings, and thus any ineffectiveness of privately retained counsel cannot be imputed to the government for purposes of establishing a violation of the Fifth Amendment. On its face, the holding of the Fourth Circuit regarding this issue seems spectacularly uninteresting—immigration proceedings have long been recognized to be civil in nature, and thus the Sixth Amendment does not provide any right to counsel. Without a constitutional right to counsel, there can be no constitutional violation if privately retained counsel performs ineffectively, as there will be no nexus in those circumstances between the counsel’s ineffectiveness and the state action required for invoking the Constitution. Notwithstanding this seemingly straight-forward analysis, the Fourth Circuit joined just one other court, the Court of Appeals for the Seventh Circuit, in finding that ineffective assistance of counsel in immigration proceedings does not constitute a violation of an alien’s right to due process. Every other court of appeals that addressed this issue has found that, although the Sixth Amendment does not guarantee a right to counsel in immigration proceedings, ineffective assistance of counsel may render the proceedings so fundamentally unfair and so impeding the presentation of an alien’s case that the ineffectiveness could deprive an alien of his right to due process under the Fifth Amendment. These courts have reached this conclusion in a perfunctory fashion, without squarely reconciling Supreme Court precedent that seems to argue strongly against the possibility that the ineffective assistance of counsel may constitute a violation of due process in circumstances where the Constitution does not provide a right to counsel.

 

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Voting, Annexation, and Metropolitan Structure: A Comment on Gillette – Commentary by William A. Fischel

From Volume 78, Number 4 (May 2005)
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This Comment on Professor Gillette’s article offers an economic way of thinking about voting on annexation and incorporation. It is not a criticism of his article in the ordinary sense. Indeed, the major conclusion that follows from the analytical model is that concurrent voting on annexation, which Gillette generally favors, is economically desirable.

To be clear, concurrent voting means here that the annexation must be approved by a majority of voters or their representatives in the existing city that seeks to annex some territory and by a majority of the voters in the territory to be annexed. If the proposed annexation fails to achieve a majority in either jurisdiction, the proposal fails. In what follows, the more critical majority is that of the territory to be annexed, not that of the annexing city.

The contribution of this Comment is rather one of perspective. Annexation and incorporation decisions affect how a metropolitan area is governed, and governance of metropolitan areas affects their economic performance. My model shows that the prospect of capital gains in land values will, in some plausible situations, normally make voters make the right decisions for the larger metropolitan area. In order not to be too Pollyannaish about this process, I will conclude by pointing out some situations in which this sanguine result might not apply.

 

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Comments on Gillette, “Voting with Your Hands: Direct Democracy in Annexation” – Commentary by Jan K. Brueckner

From Volume 78, Number 4 (May 2005)
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Clayton Gillette’s paper is very penetrating and full of insights regarding the incentives involved in the annexation decision and the effect of political arrangements on the outcome. My goal in these comments will be to provide a complementary formal analysis of some of the issues exposed by the paper, using a diagrammatic approach. This approach can clearly show the gains and losses from annexation that accrue to the various parties, as well as revealing whether an annexation is socially desirable in an overall sense.

The analysis depicts a number of different scenarios that might arise in an annexation, illustrating some of the cases mentioned in Gillette’s discussion. For example, annexation might be socially undesirable, reducing the combined surplus of annexees and city residents, while being narrowly beneficial to the latter group. By contrast, annexation may benefit both groups, thus raising social welfare. While any voting arrangement will yield the right outcome in the second case, some institutional setups (for example, only city residents vote) will lead to inefficient annexation in the first case.

 

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Contribution and Spending Limits for Initiatives or Other Ballot Propositions: What Evidence is Needed to Justify a Particular Regulatory Regime? – Commentary by Bernard Grofman

From Volume 78, Number 4 (May 2005)
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Drawing on the insightful synthesis of recent Supreme Court cases on expenditure and spending limits on ballot propositions by Richard Hasen, I briefly review the justifications for regulating levels of campaign contributions and expenditures in the initiative/referendum process based on claims about the critical importance of money in politics. My focus here will be on evidentiary issues rather than jurisprudence, per se. I focus on the important question “Where’s the beef?” – that is, exactly what evidence is needed to demonstrate that money can play a sufficiently pernicious and pervasive role in the initiative campaign process such that a balancing test against the scope of impingements on First Amendment rights is appropriate? I argue that the state of social science knowledge is not yet such that universal generalizations about the role of money in politics can be supported. Nonetheless, it is reasonable for courts to allow legislatures regulating the initiative process to rely on informative case studies as their grounding for the regulatory options chosen, rather than “waiting for Godot” in the form of definitive social science research. I also provide some suggestions as to the types of research that would both serve as important theoretical contributions in political science and be helpful for the courts in the future.

 

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The Empirics of Campaign Finance – Commentary by Daniel R. Ortiz

From Volume 78, Number 4 (May 2005)
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Thomas Stratmann’s The Effectiveness of Money in Ballot Measure Campaigns and Richard Hasen’s Rethinking the Unconstitutionality of Contribution and Expenditure Limits in Ballot Measure Campaigns form a nice pair. Both question existing understandings of the empirics of campaign finance but from different perspectives. Stratmann investigates the central empirical issue in the area: the connection between campaign spending and campaign success. He questions the body of studies that find surprisingly little impact of the former on the latter, points out the conflict between this result and contemporary political practice, and identifies a methodological flaw common to all the studies. At the end he proposes a different way of modeling such spending – one that takes spending strategy into account – and finds that the influence of campaign spending on outcomes is more robust than the existing body of empirical work indicates.

Hasen’s contribution focuses not on the validity of existing empirical studies, but rather on the Supreme Court’s use of empirical evidence in its campaign finance cases. After considering the effect on ballot measures of recent Supreme Court cases concerning campaign finance regulation of candidate elections, Hasen turns to a more general task: analyzing “the role that evidence plays in the Court’s campaign finance jurisprudence.” He criticizes the Supreme Court’s current use of evidence as unprincipled and strongly argues that the Court should employ empirical evidence in a particular way – to determine whether a law’s means are appropriate.

 

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Crypto-Initiatives in Hybrid Democracy – Commentary by Elizabeth Garrett

From Volume 78, Number 4 (May 2005)
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Most Americans live in a hybrid democracy: a democratic system that is neither wholly representative nor wholly direct, but a complex combination of both at the local and state levels, which in turn influences national politics. One characteristic of a hybrid system is that politicians, interest groups, and political parties strategically use initiatives to affect voter turnout in candidate elections, to increase their membership rolls and the funds in their political war chests, and to evade campaign finance restrictions that apply in many candidate races. The use of the initiative process by politicians and parties is not new, but it seems to be increasing in recent years, or at least it is more salient. Savvy political actors are using what Thad Kousser and Mathew McCubbins call “crypto-initiatives,” which are “initiatives… designed by agenda setters… who have other goals in mind [than changing public policy]; for them, affecting policy is often at most a secondary concern.” Most of the initiatives that Kousser and McCubbins go on to describe are generated or manipulated by candidates, political parties, or other political actors seeking to aid the campaigns of particular candidates or parties.

The notion of crypto-initiatives underscores the heavy involvement of elected officials and political parties in the initiative process, a theme also emphasized in Richard Hasen’s contribution to this Symposium, which reveals the number of California issue committees controlled by politicians. In the past, much of the scholarship in law and social sciences has been preoccupied with the influence of organized and well-funded interest groups on the initiative process, or the role of wealthy individuals who back petition drives and ballot measure campaigns. Kousser and McCubbins’s article raises the question of how the involvement of political actors – who are accountable to the voters – differs from the involvement of these other groups and people. Kousser and McCubbins spend most of their time on the malignant effects of crypto-initiatives on policy and governance; I want to sketch out three effects that might be positive.

 

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