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Protecting Same-Sex Marriage and Religious Liberty

In Hollingsworth v. Perry and United States v. Windsor, or perhaps in some more clearly justiciable case a few years hence, the Supreme Court will decide whether states can prohibit same-sex marriages. The Becket Fund for Religious Liberty argued in both pending cases that protecting religious liberty is a rational basis for banning same-sex marriage.

The conflict between religious liberty and gay rights is bad for both sides and dangerous for the American tradition of individual liberty. The Court can protect the rights of both sides.

Placebo Statutes?: Sarbanes-Oxley and Ethics Code Disclosures

In Placebo Ethics, Usha Rodrigues and Mike Stegemoller (“R&S”) show that Section 406 of the Sarbanes-Oxley Act and its implementing rules have failed to generate disclosures that shed enough light on conflicts of interest and related ethical issues involving senior financial executives at publicly traded companies. They suggest two different stories of failure. One is on the part of those making disclosure decisions at public companies, presumably lawyers, who fail to comply with the letter or spirit of the Section 406 rules. The other is on the part of policymakers, particularly at the Securities and Exchange Commission (“SEC”), whose dim articulation of the rules and subsequent failure to enforce enabled such widespread evasion. R&S seem quite troubled by both.

My comments are about these supposed failures and, more generally, the diffusion of securities law compliance norms among publicly traded issuers. I fully agree with R&S that Section 406 has failed to produce much of value. I am less convinced that many thoughtful observers ever expected it to, or that the investing public has somehow been lulled into thinking otherwise.

Unfinished Business: Racial Equality in American History

In Unfinished Business, Professor Michael J. Klarman highlights a variety of social and political factors that have influenced the path of racial progress—wars, migrations, urbanization, shifting political coalitions—and he looks in particular at the contributions of law and of court decisions to American equality. The author argues that court decisions tend to reflect the racial mores of the times, which is why the Supreme Court has not been a heroic defender of the rights of racial minorities. And even when the Court has promoted progressive racial change, its decisions have often been unenforced, in part because severely oppressed groups rarely have the resources necessary to force the issue. Klarman also sheds light on the North/South dynamic and how it has influenced racial progress, arguing that as southerners have become more anxious about outside challenges to their system of white supremacy, they have acted in ways that eventually undermined that system. For example, as southern slave owners demanded greater guarantees for slavery from the federal government, they alienated northerners, who came to fear a slave power conspiracy that would interfere with their liberties.

 

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