Farewell

Persuasive Authorities is officially signing off. On behalf of our entire roster of contributors, I thank our readers for visiting us and interacting with us in this group blog. It has been fun, fruitful, and productive.

We look forward to seeing you again elsewhere soon.

Thank you. And farewell.

New Law School Rankings

(from Malcolm Gladwell.) The full list is available here (subscription required), but you can get a quick glimpse of them here.

Women’s quota in major enterprises

These days, in Germany there is a lively discussion about women’s quota in major enterprises. The facts are clear: in most German businesses, especially in leadership positions, women are still underrepresented. Only 13 percent of the boards of directors of the 30 leading firms in Germany are women. Many politicians believe it is not enough that political parties or private businesses establish self-made women’s quotas for their organizations. They claim that there must be a regulation to ensure an appropriate proportion of women in big businesses. Thus, Germany should again win the leadership among the international competition. For comparison, Norway adopted the women’s quota for boards of directors in 2003. Spain followed in 2007 with a similar regulation. France took the step on January 13, 2011.
However, the Chancellor of Germany, Angela Merkel, recently declared that there will not be a women’s quota in Germany, since it would not be enforceable anyway. Rumors are circulating that she decided this way because she was concerned to lose votes in this very important election year 2011. Yet, clever enough, she also mentioned that she only decided against women’s quota because economy should once again try to give themselves quotas without any state regulation.

Finally the women’s quota issue also made it in Swiss headlines. Whereas in Swiss politics and government, women slowly compete men (four out of seven federal councils, 26 percent of the National Council and 24 percent of the Council of States, the head of the Swiss financial market supervisory authority and the head of the state secretariat for economic affairs are female), in economy there are still not enough women visible, and there is no perspective of change in the next couple of years. On an international comparison, Switzerland is among the last if it is about women in the executive suites.

Voices are getting loud for women’s quota only partially. Arguments against are made and say that especially young women don’t want to be so called ‘quota women’. Others fear that state regulation displaces the individual freedom. Other arguments are made that it is unconstitutional: Art. 27 of the Swiss Federal Constitution provides the freedom of economy for individuals and private companies. However, given a statutory basis, it could be a legitimate restriction as being within a public interest and proportional. Another constitutional argument says that quotas violate the prohibition of discrimination based on gender according to Art. 8 Abs. 3 of the Swiss Federal Constitution. Yet, this argument is highly controversial.

Anyhow, some concerns might be more legitimate. Many examples show that women who finally made it to a leading position had to fight even harder to prove that they were not only quota women but qualified at least as much as a competing man was.

However, from my point of view, there are reams of reasons for the introduction of women’s quotas for major enterprises. There are several studies (among others one from McKinsey) which show that the equity return and the profit in all of a business is clearly higher in businesses with gender-mixed management teams than in men-only teams. A UN research study shows that US firms with women in the business management feature a 42 percent higher operating margin than firms led only by men. The hope that the older men dominated generation would step back from their leading position in big firms and both female and male would fill their positions, did not occur. If the economy is not able to fill the free seats in their leading management with woman, coercion is probably the only solution to achieve gender equality.

Women supply half the market of enterprises. Their exclusion possibly leads to an alleviation of the potential for economic growth. Also, women are half of the market of businesses. They make half of the decisions regarding consummation. Furthermore, researches show that women are needed in leading positions of big businesses because of the aging of our society. It is assumed that in 30 years in Europe there will be an absence of 24 Million employees. If women would participate to same parts in the working life as men, the number could be reduced to 3 millions.

Although I believe that women’s quota for big businesses are the best solution to reduce the discrimination against women, there would be several good alternatives and softer forms to augment the number of female employees in leading positions. One would be to reward the commitment for women’s quota of every major enterprise. Another possibility would be to certify enterprises which advocate gender equality and exhibit a certain women’s quota in their businesses. It is also possible that an enterprise can assert factual reasons to not fulfill the requested quota of female employees, e.g. because not enough women applied for open jobs, and that this would lead to the fact that these businesses would have to take action in respect of affirmative action programs for women and provisions for the advancement of women in big businesses. My favorite solution, however, is to legally regulate a women’s quota on time for major enterprises. Therewith it would not be a rigid institution but a promoter for a self-supporting development.

University of Colorado Law School

The Law School is in the midst of a Dean search. The four finalists, listed here, have just been announced.

Guest Post from Madhav Khosla on "Making Social Rights Conditional: Lessons from India"

It is widely believed that the Indian Supreme Court adjudicates social rights. The familiar narrative, about the rise of the Court during the post-Emergency years and the innovations of the PIL era, requires no elaboration. In a new article, available here (link: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1742746), and forthcoming in the International Journal of Constitutional Law (I-CON), I challenge this narrative and present a detailed study of the social rights jurisprudence of the Indian Supreme Court. Before embarking upon my own thesis, I show why the literature on social rights in India is deeply flawed and has presented an inaccurate account of our jurisprudence. I then introduce a new distinction in the social rights debate between what I call systemic social rights and conditional social rights. This thesis goes against the literature on social rights in India, and suggests that the paradigm that constitutional lawyers currently adopt to study the South African experience with such rights (weak v. strong form review) cannot adequately grasp the Indian experience. The conditional rights approach is, I argue, a new form of social rights adjudication, and is a rare private law model of public law adjudication. I also discuss in detail what implications follow from the conditional social rights thesis.

The abstract is as follows:

Recent years have witnessed important advancements in the discussion on social rights. The South African experience with social rights has revealed how such rights can be protected without providing for an individualized remedy. Comparative constitutional lawyers now debate the promise of the South African approach, and the possibility of weak-form judicial review in social rights cases. This Article considers the Indian experience with social rights, and explains how it exhibits a new form of social rights adjudication. This is the adjudication of a conditional social right; an approach that displays a rare private law model of public law adjudication. This Article studies the nature and significance of this heretofore ignored adjudicatory approach, and contrasts it with the systemic social rights approach. The conditional social rights thesis has important implications for the present debate on social rights adjudication, and presents an account of the Indian Supreme Court that is truer than those we presently encounter.

Madhav Khosla (madhav.khosla@aya.yale.edu) is currently at the Centre for Policy Research, New Delhi.

United States vs. Canada

No, it's not a championship hockey game. It's the battle of law schools and the legal profession! Read about it here.

New Dean at UNH

Tomorrow, the University of New Hampshire Law School will welcome its new dean, John Broderick, former Chief Justice of the New Hampshire Supreme Court.

Thinking About Getting a PhD? Well, Think Again

I just finished reading this slightly depressing article in the latest edition of The Economist. Basically, there are too many PhD candidates, too few jobs, and the exploitation of grad students as cheap research and teaching assistants follows. Thus, the interests of grad students and those of universities are not aligned. Moreover, a PhD is probably worth less on the market today than it used to be, while a Masters degree comes close to the PhD in terms of financial remuneration. Admittedly, this might be a little less relevant for those of us pursuing a SJD/JSD, but it seems like this is only a matter of time, especially as the rate of JD/PhDs continues to grow. Check it out here.

Law School Clinics

I've always thought law school clinics were one of the best things law students could do to learn about the law. Here is something interesting and important a group of law students is doing as part of a clinic.

Law School Personal Statements

How should you write one? Here is some useful advice.

Be Careful What You Say About Document Review

It could get invite very harsh criticism. Like this, for example.

Ulen on the Role of Law in Economic Growth and Development

For those interested in law & economics, here´s an interesting talk that Prof. Tom Ulen recently gave at Torcuato Di Tella law school on economic development and law.

Dworkin Interviewed

Here is a short and interesting BBC interview to Ronald Dworkin.

Whom Do Law School Attract?

Apparently all types of people: the former Commissioner of Major League Baseball is now a faculty member at Marquette Law School, and a former Nigerian presidential candidate is now a law student at UNLV.

The Apprentice

The lone attorney still in the running to become Donald Trump's next apprentice answers questions about the show here.

Congratulations to Jay Readey

...on his appointment as Executive Director of the Chicago Lawyers' Committee for Civil Rights Under Law.

Here is what the Chair of the Board of Directors, Edward Feldman, said in announcing Jay's hiring:

I am very excited that Jay Readey will serve as our Executive Director. Jay's commitment to equal opportunity and disadvantaged communities has shown throughout his career, and his nonprofit management and leadership experience make him well-positioned to lead the organization through a new phase of expanded service in fulfillment of our mission.

Congratulations to Jay, my dear friend and former classmate!

Review of "When Governments Break the Law"

Apologies for cross posting. My review of the new book edited by Austin Sarat and Nasser Hussain,When Governments Break the Law: The Rule of Law and the Prosecution of the Bush Administration, has been posted on Concurring Opinions. The book is great, and you can find my review here.

Harvard in State Capitols

Ten states have a Harvard graduate on the ballot for governor. "So maybe this is the year of the anti-elite, after all," writes Edward Schumacher-Matos.

Constitutional Law... in High School

This looks like a great program.

What Can You Do With a Harvard Law Degree?

Become General Manager of the New York Mets.