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Butler LEC ag

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see gmu orientations judge bootcamps

The Attorneys General Education Program, The Henry G. Manne Program on the Law and Economics

raga

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cash for economists

https://www.sourcewatch.org/index.php?title=Cash_for_Comments_Economists_Network

The Cash for Comments network of 127 (in total over ten years) American Professors of Economics (with a few law and business professors), wasone of the most successful, and long-lasting of all the scams run by the tobacco industry. It was the brain-child of Professor Robert D. Tollison at George Mason University's libertarian think-tank, the Center for the Study of Public Choice (CSPC), and James M Savarese of Ogilvy & Mather Public Relations.

Savarese later took the lobbying operation out of O&M and ran it through his own private lobbying company James Savarese & Associates with a skeleton staff -- and in partnership with Tollison and his wife Anna Tollison. Later Savarese turned up, once again, as a key lobbyist with Ogilvy Adams & Rinehart, so clearly this had always been a surreptitious O&M operation - kept at arms length and legally separated from that large company - probably for legal reasons.

Essentially, Savarese and Tollison recruited as network members at least one Professor of Economics in each State University (they were poorly paid and welcomed the chance to make money on the side). He used his list of members and associates within the Center for Study of Public Choice and the Public Choice Society which he jointly controlled with Gordon Tullock and James Buchanan at George Mason University.

The foundation document of this network was a memo "Excise Tax Speaking Forums" sent by Ogilvy & Mather to FredPanzer at the Tobacco Institute on the 20th November 1984 [2]. It refers to a forum sponsored by the Public Choice Society to be held in New Orleans (Feb 21-23 1985) which had four core-group network speakers on a major panel, which was being organised for the tobacco industry by Tollison and Savarese. This early manifestation came to be called the Committee on Taxation & Economic Growth.

Public Choice Libertarian ideology

'Public Choice Economics' in the context of the day, was a catch-phrase meaning "free-markets, less government, reduced regulation" of goods and services. It was the ultra-libertarian economic ideology of UK Prime Minister Margaret Thatcher which was followed (as much as he was capable of understanding it) by President Ronald Reagan in the USA. It's main emphasis was on deregulation of industries -- even those with poisoning and polluting proplems - and in Reagan's case it led to major scandals with the forced retirement of over 20 top staff from the EPA, and the hurried exit ofThorne Auchter as head of the Occupational Safety & Health Administration and his (later) lobbying partner J:{ames J Tozzias the administration's "Deregulation Czar" (Office of Information & Regulatory Affairs - OIRA/OMB).}:

Payment system

The tobacco industry paid no retainer fees to the general Cash-for-Comment network members. However they did retain some of the core network and paid higher fees to a half-dozen of the Society economist recruited as part of the Committee on Taxation & Economic Growth. Network members were employed purely on pay-for-service transactions, and expected to also make some extra cash from the newspapers which accepted their op-eds.

RELATED ENTRIES
Com. on Tax & Economic Growth
Economists' network
Robert Tollison & James Savarese
C4C Network Documents
C4C Network Members

Savarese and Tollison would put out a request to each network member, specifying the subject to be covered and including a few of the key themes to be promoted, together with any essential statistics. The professor-member was then expected to:

  1. write an op-ed piece following the theme and guidelines provided (usually 1000-1500 words), but in layman's language.
  2. send the article to the editor of a local city newspaper (specified by the minders). It was probably assumed that some would be paid a token freelance writer's fee by the newspaper. ($100-$250 at this time)
  3. if the article was published (and many were since they were essentially free) then photocopies of the article were to be sent to two local Representatives or Congressmen (specified by the tobacco staff)
  4. copies of the published piece would then be returned to Savarese for payment.

The professors would then be paid between$600 and $3000 for their efforts by way of the Center for the Study of Public Choice at George Mason University; the amount varied over time.

The articles were commissioned via Savarese's staff, and the draft article was expected to be returned to the Institute for checking. They would make any necessary changes, and pass it through one or more of their major outside law firms for vetting. Sometimes Savarese or his staff might make changes also. Newspapers were designated in each region, so two or more articles didn't conflict.If the article was published (and sometimes even if they weren't) copies were to a designated Representative or Senator, with a note bringing the economist's 'independent opinion' to the Congressman's notice.

They were also paid to write letters-to-the-editor whenever the opportunity arose to promote the cigarette industry's line. For a period in 1987-88 the network was extended to also include Professors of Law and Business.

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SEE C4C (Doc Index) for the most relevant of tobacco archives documents.

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C4C Network Phases

The Cash for Comments Economists' Network developed in five clearly identifiable phases.

Organisation

The principle organisers included the:

At a later date the operations and administration was hidden behind the veil of the Independent Institute and William F Shughart (one of the core group).

The most popular line of economic argument favoured by the tobacco industry was that of maintaining that cigarette excises (which the States controlled and used to bolster their funds when needed) were 'Regressive' taxes. The appeal was made on human-rights grounds; that the State was kicking the poor and attacking the more defenseless members of society who enjoyed a smoke. Next in line would be a return of alcohol Prohibition or excessive excise taxes on beer and fast food.

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https://www.chronicle.com/article/to-court-a-secretive-donor-law-deans-at-george-mason-blasted-climate-scientists-and-their-own-accreditor/

no lnx

Chronicle.com

To Court a Secretive Donor, Law Deans at George Mason Blasted Climate Scientists and Their Own Accreditor

By Jack Stripling and Nell Gluckman

DECEMBER 18, 2019

Dean Henry N. Butler, left, and the artist Greg Wyatt unveil a statue of Antonin Scalia at George Mason U. law school in the fall of 2018. In the audience are Supreme Court Justice Clarence Thomas; Chief Justice John G. Roberts and his wife, Jane Sullivan Roberts; Justice Samuel Alito and his wife, Martha-Ann Bomgardner Alito; Justice Elena Kagan, and Justice Neil Gorsuch.

Leaders of George Mason University’s Antonin Scalia Law School, which has been criticized for its ties to conservative donors, have spent years courting a wealthy Chicago philanthropist who has steered money toward organizations that promote skepticism of climate change or finance conservative and libertarian journalism on college campuses.

Newly released documents show the extent to which Barre Seid, the philanthropist, sought to engage law-school deans on hot-button political topics. On several occasions he raised alarms about political activism by climate scientists at George Mason, prompting assurances from the dean that “some of our friends on the board” were “all over it (behind the scenes).”

The documents, which include more than 800 pages of emails and other communications, were obtained through a public-records request filed by UnKoch My Campus, a national group that seeks to expose the Charles Koch Foundation’s influence on higher education.

In 2016, George Mason announced that it had received a $10 million grant from the Koch Foundation, along with $20 million from an anonymous donor, who asked that the law school be named in honor of Scalia, the late Supreme Court justice and a conservative icon. In a news release on Thursday, Allison Pienta, a lawyer working with UnKoch My Campus, argued that the documents she had obtained “prove that Mr. Seid is the Scalia Law donor.”

Taxpayers, students, Virginia citizens, we have a right to know who is donating to a public law school and asking the law school in return to serve their interest.

Pienta, who had requested records that contained the anonymous donor’s name, suspected that Seid had been the benefactor in part because people associated with him are referred to in a number of exchanges. She concluded that he was the donor after cross-referencing those emails with others that mention Seid by name.

Anne Holton, George Mason’s interim president, said in a letter to Pienta that the university could not “confirm or deny your conclusion” that Seid is the anonymous donor, “as universities have an obligation to respect a donor’s right to anonymity.”

After reviewing the records, which contained numerous redactions to protect donor privacy, The Chronicle could not independently verify the identity of the donor.What the records do show, however, is a yearslong, politically tinged dialogue between Seid and two successive deans of George Mason’s law school.

People who are concerned about undue donor influence often envision clear-cut quid pro quos or prescriptive gift agreements that grant wealthy people too much control over the academic enterprise. These documents imply a subtler form of influence, one in which a donor elevates concerns about a professor or a regulatory body just by passing information along to university decision makers.

An Activist Donor

As told through the documents, the story of Seid’s relationships with Daniel D. Polsby, former dean of the law school, and his successor, Henry N. Butler, begins at least nine years ago. By that time, Seid had already been working to transform a tiny part of the higher-education landscape. Through the Barbara and Barre Seid Foundation, he gave $825,000 to Shimer College, an institution that enrolled about 100 students and followed the Great Books curriculum. After the donation, several people with financial ties to Seid joined the college’s Board of Trustees, and a fierce battle over governance of the college followed.

(In 2017, Shimer was absorbed by North Central College, which added the Shimer Great Books School as an academic program).

Between 2011 and 2016, Seid had or had scheduled at least seven meetings with one or both of George Mason’s law deans.

The deans found in Seid an inquisitive communicator, particularly when it came to conservative causes. In 2012, for example, he wrote to Polsby asking for “any insight” into a new program, housed at George Mason, that was established by the former Republican Congressman Bob Inglis. The question was notable given Seid’s apparent interest in the politics of climate science. Inglis had been voted out of office two years earlier during his primary, largely because he supported a tax on carbon. Now he was being embraced by George Mason.

Inglis’s program, the Energy and Enterprise Initiative, was meant to “promote conservative solutions to America’s energy and climate challenges.” Polsby responded to Seid right away, appearing to distance himself and the law school from the program.

“Inglis’s new center is in a different college from us,” Polsby said. “The law school has no role and wasn’t asked before the announcement was made.”

The conversations at times took on an antiregulatory flavor. In one exchange with Seid, in 2013, Polsby launched into a broadside against the law school’s accrediting agency. The American Bar Association, he wrote, “has added all kinds of dubious nonsense in its accreditation standards.”

“Poking them in the eye,” Polsby continued, “would be a genuine pleasure.”

Seid seemed particularly curious about the powers of higher-education regulators. Who was to say whether a person could operate a school, he wondered? Did you need the state’s permission, he asked Polsby? Did you need accreditation?

The impetus for that discussion was a Chronicle article that said the state of Virginia was shutting down an unaccredited university.

‘Outrageous Behavior’

In 2015, the year Butler became dean, a controversy in climate science captured Seid’s attention. Butler assured the philanthropist that he, too, was aghast.

A group of 20 professors, including some at George Mason, signed a letter urging the Obama administration to open a racketeering investigation into fossil-fuel companies and their allies. The companies had “knowingly deceived the American people about the risks of climate change,” the professors wrote, and could be investigated under the Racketeer Influenced and Corrupt Organizations Act, commonly known as RICO.

This wasn’t the professors’ idea. Several months earlier, U.S. Sen. Sheldon Whitehouse, Democrat of Rhode Island, had proposed the possibility of suing fossil-fuel companies under RICO, just as the Justice Department had done to Big Tobacco more than a decade earlier. Tobacco companies had engaged in a “massive 50-year scheme to defraud the public,” the department had argued. The same might be said of fossil-fuel companies, Senator Whitehouse wrote, which had sponsored climate-change research that contradicts peer-reviewed consensus.

Seid forwarded to Butler a blog post by Judith A. Curry, a high-profile skeptic of climate science and former chairwoman of the Georgia Institute of Technology’s School of Earth and Atmospheric Sciences. Curry wrote that “the consensus on human caused climate change is not as overwhelming as you seem to think.” She admonished the professors for engaging in “irresponsible advocacy,” accusing them of trying to “silence scientists that disagree with you.”

“Is it significant that 6 GMU guys,” Seid wrote to Butler, “were the originators” of the letter.

“This is really outrageous behavior,” Butler replied on September 18, 2015. “I do not know the GMU folks who signed the letter, but they should be embarrassed. I wonder if they really understand anything about RICO, which was the source of much abuse by prosecutors (and the plaintiffs’ bar in follow on private suits) until the Feds went totally crazy and criminalized almost all behavior (which meant there was less need to use conspiracy theories).”

A few weeks later, Seid forwarded to Butler another blog post on the same subject from Powerline, an outlet for conservative commentary.

“Not your problem — but. … ” Seid wrote to the dean.

The post, titled “An Instance of Warmist Corruption,” took aim at Jagadish Shukla, a climate scientist at George Mason and the first signatory to the professors’ letter calling for a RICO investigation. The blog described Shukla as “remarkably well paid” and suggested some form of financial malfeasance on his part.

Shukla was one of the lead authors of the Intergovernmental Panel on Climate Change report, who shared the Nobel Peace Prize with former Vice President Al Gore Jr., in 2007.

Responding to the Powerline post, Butler assured Seid that powerful people at George Mason were involved with the matter.

“This is such absurd behavior,” Butler wrote to Seid on October 9, 2015. “Totally indefensible.

“Some of our friends on the board,” he continued, “are all over it (behind the scenes).”

That same month, George Mason began an internal audit of Shukla’s handling of grants, a university spokesman confirmed to The Chronicle.

By this time, Shukla had run smack into a political buzz saw. Lamar S. Smith, a Republican Congressman from Texas, had announced plans to investigate a nonprofit research group led by Shukla.

On November 5, 2015, Seid forwarded to Butler an email about Shukla from Joseph L. Bast, then the president of the Heartland Institute, a conservative think tank. Seid’s foundation has donated at least $1 million to the institute, which rejects as “propaganda” the idea of scientific consensus on the causes and consequences of climate change. George Mason’s own “multimillionaire government trough-feeder,” Bast wrote, was finally being exposed.

In response to Seid, Butler wrote, “The president is freaking out about this,” referring to Ángel Cabrera, George Mason’s president at the time.

For climate scientists like Shukla, criticism often comes with the job. But the newly released emails, Shukla told The Chronicle, suggest that those attackers had the ear of George Mason’s Board of Visitors.

“The ferocity of their attack was totally expected,” Shukla said in an email. “The fact that these guys had access to GMU board members, as the emails show, that is very unusual.”

Michael Sandler, a spokesman for George Mason, told The Chronicle that George Mason’s audit “concluded no wrongdoing on the part of Professor Shukla.”

The Chronicle requested a copy of the audit, but George Mason officials said it was a personnel record and not subject to public-disclosure laws.

As for congressional scrutiny, a politically connected board member says he came to Shukla’s defense. Thomas M. Davis III, the rector of George Mason’s board and a former Republican congressman from Virginia, said in an interview on Tuesday that he had quietly urged Representative Smith not to call a public hearing.

“I said ‘Look, lay off this guy,’” Davis said. “I made it clear we stood behind him and they ought to lay off him, and they did. I met with Shukla and told him we supported him.

“When one of our professors is under attack, either from the right or the left, we are behind them,” Davis continued.

Butler, the dean, declined an interview requestand did not answer specific questions from The Chronicle about his emails. In a statement, Butler said he had nothing to do with the university’s response to Shukla.

“I had no influence in this matter, nor did I attempt to exert any influence in this matter,” Butler’s statement reads. “I support academic freedom at George Mason University’s Scalia Law School and across the university. Academic freedom and an open marketplace of ideas, including room for robust debate, is the very foundation of higher learning.”

A spokeswoman for Tripp Lite, a manufacturing company where Seid served as president, did not respond to emails this week seeking comment from Seid, who did not respond to a phone message on Wednesday.

A University on the Defensive

For George Mason, the release of a new cache of documents related to donor influence marks a chapter in a continuing saga. For years the university has fought in courts of law and public opinion, defending its relationships with conservative philanthropists. Only recently, however, did the university acknowledge that it hasn’t always gotten it right.

Last year when Cabrera, then the university’s president, announced a review of George Mason’s gift-acceptance policies, he conceded that some of its grant agreements “fall short of the standards of academic independence.” The agreements gave donors opportunities to weigh in on faculty hiring and stated with some specificity what professors would study.

But donors can still keep their identities secret, making it difficult to discern their intent.

By channeling a gift through a third party, a donor can further obscure the source of the money. That appears to have happened at George Mason. Several of the newly released emails refer to Donors Trust, a nonprofit organization that, among other things, offers donors anonymity.

Donors Trust describes itself as a public charity that was created to work with donors who are “dedicated to the ideals of limited government, personal responsibility, and free enterprise.” Mother Jones described it as “the dark-money ATM of the right.” In her book Dark Money: The Hidden History of the Billionaires Behind the Rise of the Radical Right, Jane Mayer explained that donors could give to the fund, which in turn donated to conservative groups and, in effect, “erased the donors’ names from the money trail.”

That kind of opacity troubles some at George Mason, who say the public deserves more information about who may be exerting influence on a public university’s leadership and its faculty members. Pienta, the lawyer working with UnKoch My Campus, said “Mason has become basically ground zero for improper donor influence on a public institution.”

“Taxpayers, students, Virginia citizens, we have a right to know who is donating to a public law school and asking the law school in return to serve their interest,” said Pienta, a graduate of George Mason’s law school.

Virginia code, however, exempts from disclosure any records that could reveal the identity of a donor who has requested anonymity. (The state’s Supreme Court ruled last week that George Mason’s fund-raising arm is exempt from public-records laws).

It is still not clear what Seid’s involvement in renaming the law school may have been, if anything. But when the school unveiled a 4,300-pound “Bill of Rights Eagle” statue in front of its building, Butler wanted Seid to know about it.

“Yesterday was a really cool day at Scalia Law,” he wrote to Seid in May 2017, just over a year after the school was renamed. The sculptor had another project in the works, Butler explained: “a larger-than-life statue of Justice Scalia.”

Jack Stripling covers college leadership, particularly presidents and governing boards. Follow him on Twitter @jackstripling, or email him at jack.stripling@chronicle.com.

Nell Gluckman is a senior reporter who writes about research, ethics, funding issues, affirmative action, and other higher-education topics. You can follow her on Twitter @nellgluckman, or email her at nell.gluckman@chronicle.com.

Dan Bauman and Megan Zahneis contributed to this report.

A version of this article appeared in the January 10, 2020, issue.

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PERC off bs

Henry N. Butler

Board Member

George Mason University Law & Economics Center, School of Law

Arlington, Virginia

Dr. Butler is a George Mason University Foundation Professor of Law and Dean at the George Mason University School of Law. His research and teachings focus on issues related to antitrust, contracting, health care, corporate governance, consumer protection, banking, insurance, environmental law and policy, and securities regulation. For more than 20 years, he has managed judicial education programs that teach judges the basics of economics, finance, accounting, statistics, and scientific methods. Dr. Butler is a member of the American Law & Economics Association, the Advisory Board of the Atlantic Legal Foundation, and is an Honorary Member of the American College of Business Court Judges.

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http://masonlec.org/events/781

Thursday, December 1, 2016 to Friday, December 2, 2016

Venue: George Mason University Antonin Scalia Law School

Division: The Attorneys General Education Program, The Judicial Education Program

Underfunded public employee pensionsare one of the major fiscal crises confronting American states and municipalities. It is estimated that the shortfall is as much as $1 trillion and payments to retirees increasingly are diverting funds for necessary services, including police, fire, schools, roads, and other core services.

Efforts at reform have run into increasing legal roadblocks, whether in bankruptcy court or under state law. This Public Policy Conference will bring together leading scholars and commentators for a full-spectrum review of the law, economics, political economy, and public policy issues regarding public employee pensions and pension reform. The proceedings of the Conference will be published in a special symposium issue of Scalia Law’s Journal of Law, Economics & Policy.

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Past Events – Attorneys General Education Program

LEC Public Policy Conference on Administration Unbound? Delegation, Deference, and Discretion

Date: Friday, September 12, 20148:30 am to 3:00 pm

Venue: George Mason University Antonin Scalia Law School

Division: The Attorneys General Education Program, The Henry G. Manne Program on the Law and Economics

Program Description: The LEC Public Policy Conference on Administration Unbound? Delegation, Deference, and Discretion featured panels on specialized topics, such as regulatory cost-benefit analysis, the judicial review of regulatory science, and the consequences of significant delegated discretion to administrative agencies. Speakers included the Honorable Douglas H. Ginsburg, Senior Circuit Judge, US Court of Appeals for the District of Columbia, and the Honorable C. Boyden Gray, former Ambassador to the European Union and Counsel to the President, as well as other prominent academics and practitioners.

Agenda

Agency Deference: Appropriate or Abusive?

Richard O. Faulk, Partner, Hollingsworth LLP and Senior Director, Energy and Environment, Law & Economics Center

Thomas H. Hill, Senior Executive and General Counsel, Global EHS Operations, General Electric

Sanne H. Knudsen, Assistant Professor of Law, University of Washington School of Law

Kevin M. Stack, Professor of Law and Associate Dean of Research, Vanderbilt Law School

Amy J. Wildermuth, Professor of Law and Associate Vice President of Faculty, SJ Quinney College of Law, University of Utah

Moderator:

Sam Kazman, General Counsel and Director, Center for Law and Litigation, Competition Enterprise Institute

Excessive Delegation and theExpansion of Federal Power

Jack M. Beermann, Harry Elwood Warren Scholar and Professor of Law, Boston University School of Law

F. William Brownell, Partner, Hunton & Williams LLP

C. Boyden Gray, Founding Partner, Boyden Gray & Associates

Kristin E. Hickman, Harlan Albert Rogers Professor in Law and Associate Director, Corporate Institute, University of Minnesota Law School

Neomi Rao, Associate Professor of Law, George Mason University School of Law

Moderator:

Thomas H. Dupree Jr., Partner, Gibson Dunn &Crutcher LLP

Is Administrative Law Unlawful?

Philip A. Hamburger, Maurice and Hilda Friedman Professor of Law, Columbia Law School

Commentator:

The Honorable Douglas H. Ginsburg, Professor of Law, George Mason University School of Law and Senior Circuit Judge, US Court of Appeals for the District of Columbia Circuit

Revisiting Agency Discretion and the Scope of Judicial Reivew

David E. Bernstein, George Mason University Foundation Professor of Law, George Mason University School of Law

Caroline Cecot, Postdoctoral Research Scholar in Law and Economics, Vanderbilt Law School

Charles J. Cooper, Partner, Cooper & Kirk PLLC

Michael S. Greve, Professor of law, George Mason University School of Law

W. Kip Viscusi, University Distinguished Professor of Law, Economics and Management; Co-Director, PhD Program in Law and Economics, Vanderbilt Law School

Moderator:

Helgi C. Walker, Partner, Gibson, Dunn & Crutcher LLP

RESEARCH

The proceedings of this conference have been published as George Mason Law Review, vol. 22, no. 3 (2015).

Stack, Kevin M., “The Interpretive Dimension of Seminole Rock.”

Knudsen, Sanne H., and Wildermuth, Amy, “Lessons from the Lost History of Seminole Rock.”

Gray, Boyden, “The Nondelegation Canon’s Neglected History and Underestimated Legacy.”

David E. Bernstein, “What to do About Federal Agency Science: Some Doubts About Regulatory Daubert.”

Cecot, Caroline, and Viscusi, Kip, “Judicial Review of Agency Benefit-Cost Analysis.”

For More information, please contact:

Academics & General Public: Attorneys General and Staff:

Henry G. Manne Programs

jsmithq@gmu.edu

703.993.8382 Attorneys General Education Program

AGEP@gmu.edu

703.993.9964

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Class 12: Consumer Credit

Antonin Scalia Law School, George Mason University, Hazel Hall, Room 215

Reading Assignment:

:{_Zywicki, Todd. "**America's Debt Paranoia**." The Freeman

Ideason Liberty. V59 N8 (2009)}:_

Zywicki, Todd. "**The Market for Information and Credit Card Regulation**." Bankers & Financial Services Report. V28 N1 (2009)

Zywicki, Todd. "**Money to Go**." Regulation, Summer 2010.

Instructor:<ul class="session-sp-list" style="margin: 0px; padding: 0px; border: 0px; font-weight: inherit; font-style: inherit; line-height: 1.5em; list-style: none; clear: none; overflow: hidden;"></ul>

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In keeping with the tradition of inviting the newly elected Virginia attorney

general to meet and speak with students, the law school welcomed Ken Cuccinelli

(’95) in the spring. Cuccinelli’s election to the office of attorney general

represents the highest elected office obtained by a Mason Law graduate.

Though hobbled by a sprained foot, the attorney general was not slowed on

his visit back to his home turf. In addition to making a surprise visit to a Federal

Courts class, Cuccinelli was greeted by a large crowd in Room 121. True to the

form he has shown in seeking political office, Cuccinelli took all questions from

the assembled guests, mixing humor, frankness, and a keen awareness of the issues,

controversies, and law. His speech started with a discussion of his time at

George Mason. He recalled the difficulty and challenge of thinking like an engineer

but trying to learn to think like a lawyer. He went on to tell the gathered

crowd about the varied duties of the AG, his initiatives going forward, and the

practicalities of running an office of over 250 people.

 Cuccinelli has frequently been featured in the news this year for a variety of

his initiatives as AG, including the Commonwealth’s lawsuit against the health

care bill (filed the very day Cuccinelli visited George Mason), opposition to EPA

regulations, and a letter opinion issued early in the year to a university setting

out the limits of a university to provide policy protections to gay and lesbian

individuals.

That letter generated headlines and some protests. At Mason, Catherine Oakley (3L), with the assistance of Mason

students and alumni, arranged and led a peaceful protest outside the law school on the day of the attorney general’s visit. The protest

included Northern Virginia politicians, students from Fairfax and Arlington, and media. Inside, the AG did not shy away from questions

about the controversy and reiterated his reasoning for the guests.

Since his visit, the AG has followed through on a number of initiatives he discussed with guests that day. If his first months in

office are any indication, it seems certain Attorney General Cuccinelli will continue to make headlines as he tackles issues on behalf

of the Commonwealth. For more information about Cuccinelli and the work of the attorney general’s office, visit www.oag.state.

va.us/.

Virginia Attorney General Cuccinelli Returns to Mason

George Mason law alumni are not only serving throughout

the Commonwealth, but they are finding appointments at the

highest levels to serve Virginia.

Sean Connaughton (’92) was appointed Secretary of Transportation for the Commonwealth of Virginia by Governor Bob

McDonnellin January 2010. Prior to the appointment by Governor McDonnell, he served as Maritime Administrator, the head of

the U.S. Maritime Administration, an agency of the United States Department of Transportation, from 2006 until early 2009. Connaughton

also served as Chairman of the Board of County Supervisors of Prince William County, Virginia, from January 1, 2000,

until his appointment as Maritime Administrator. He is also a former United States Coast Guard officer and a retired officer of the

United States Naval Reserve.

Wesley G. Russell Jr. (’95) was appointed by Attorney General Ken Cuccinelli (‘95) to head the civil litigation unit of the

AG’s office, with a focus on constitutional challenges. Russell was a partner at the Richmond firm of McSweeney, Crump, Childress

& Temple, P.C. Russell’s practice has focused on professional liability defense and constitutional law. Given his work for both private

clients and as outside counsel for the Office of the Attorney General, Russell has extensive trial and appellate experience regarding

constitutional challenges to statutes as well as claims involving sovereign immunity, the Virginia Tort Claims Act, and separation of

powers issues.

Matthew Conrad (’05) was appointed Assistant Secretary of Agriculture and Forestry by Governor Bob McDonnell in October

  1. He began his career in government service at the Virginia Office of the Attorney General. Beginning in 2005, Conrad served

as an Assistant Attorney General and was promoted to lead attorney for legislation and agency advice within his section in 2007. He

also was appointed a Special Assistant U.S. Attorney for the Eastern District of Virginia. Conrad joined the Richmond-based Alliance

Group in 2008 where he was director of the Virginia Wine Council, an agricultural membership organization organized to represent

the interests of grape growers and Virginia’s farm wineries on the state and local levels.

http://www.law.gmu.edu/assets/files/alumni/Mason_Newsletter_fall_2010.pdf

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lec gmu random email

Paul,

Please send me the contract information for these folks:

The Coal Industry

Paul M. Seby, Moye White, Denver, Colorado (Moderator) Karl R. Moor, Senior Vice

President and Chief Environmental Counsel, Southern Company Jacob A. Williams

Vice President, Generation Development,Peabody Energy Steve Thompson, Executive

Director, Oklahoma Department of Environmental Quality Utility OperatOr, TBD

Do we still need another participant, or is that the spot taken by Karl?

Thanks.

Henry

Henry N. Butler

George University Foundation Professor of Law and Executive Director, Law

Economics Center George Mason University School of Law

3301 Fairfax Drive

Arlington, VA 2220l

hnbutler@gmu.edu

703?993?8644

224?330?0540 (mobile

==

Another seminar funder, Donors Trust, gave George Mason’s Law & Economics Center nearly $450,000 in general support in 2010. As the Center reported, Donors Trust helps conservative foundations and individuals give money anonymously to nonprofits that may take controversial positions.

A representative of Donors Trust declined to comment for this story.

The Searle Freedom Trust, a foundation advocating “economic liberty” that regularly donates to conservative groups like the Cato Institute and the American Enterprise Institute, contributed a combined $400,000 to George Mason’s judicial education programs in 2010 and 2011.

The school conducted conferences on antitrust law as well as “Corporations and the Limits of Criminal Law,” both funded by AT&T, BB&T, BP America, Cigna, Coca-Cola, Dow Chemical, FedEx Corp. and others.

“The Moral Foundations of Capitalism”was funded by the same group, and was the most popular George Mason conference, drawing at least 10 federal judges.

BP spokesman Scott Dean says the company has no record of ever directly contributing to the seminars but he did say BP gave the law school and the Law & Economics Center more than $37,000 between 2001 and 2008.

Seminars at Northwestern are hosted by the school’s Searle Center on Law, Regulation, and Economic Growth. The think tank, according to its website, was founded in 2006 thanks to a “generous grant” from Daniel C. Searle, the late pharmaceutical industry executive.

In 2009, the foundation gave $200,000 to Northwestern’s Searle Center for its judicial education program.

Another Northwestern seminar funder, The Lynde and HarryBradley Foundation — a major supporter of conservative organizations, including the Heritage Foundation — gave $210,000 to the Searle Center between 2008 and 2010.

Records show corporate sponsorship at Northwestern was highest from 2008 through 2010, when a man named Henry Butler — now in charge of George Mason University’s Law & Economics Center — ran the Searle Center.

Daniel Rodriguez, dean of Northwestern University’s School of Law, says corporate sponsorships at the school “ended the moment Butler left.” Rodriguez, who became the dean of Northwestern’s law school last year, says the school recently decided to terminate the programs. He says he’s against corporate sponsorship of judicial seminars.

“These programs should be free from any real or perceived conflict of interest,” he says.

Related: Find a judge

Related story: Judges often ignore trip disclosure rules

Related: Methodology

Some history

In the late 1990s and early 2000s, advocacy VID groups andmedia outlets raised concerns about judges attending privately funded conferences conducted in vacation destinations like Arizona, Montana and Florida.

Critics claimed that the undisclosed trips created conflicts of interest and cast doubt on the ability of judges to decide cases without bias.

Seminars hosted by the Foundation for Research on Economics and the Environment (FREE) attracted the most attention.

FREE, a Montana-based think tank championing “free-market environmentalism,” drew criticism for its ideologically conservative seminars. In 2011, for example, FREE hosted “Terrorism, Climate & Central Planning: Challenges to Liberty & the Rule of Law.”

Critics complained that judges spent their free time golfing, fishing and horseback riding at the conference’s Montana resort location. They worried that judges were being wined, dined and entertained byFREE’s funders, which included Koch Industries and Texaco Inc. (now part of Chevron Corp.).

Media scrutiny prompted members of Congress in 2000 to introduce legislation that would prohibit judges from accepting “anything of value in connection with a seminar.” The bill, which died in committee, was opposed by the Judicial Conference, which claimed it restricted judges’ free speech rights.

Similar legislation failed again in 2003.

In 2007, the Judicial Conference implemented a policy designed to provide “greater transparency” by setting up disclosure requirements for both judges and seminar hosts.

“Instead of banning anything,” says Geyh, the policy “was a way to mollify those who recognized the perception problem without causing the ones who treat [the conferences] as a First Amendment issue to go ballistic.”

Buying influence?

Even with the new policy, the seminars still have critics.

“These seminars are taking place because large corporate interests are hoping to influence the outcome of cases involving themselves or likeminded entities,” says Nan Aron, president of the Alliance for Justice, a liberal organization that first raised concerns about judicial education conferences in a 1993 report titled “Justice for Sale.”

Russell Wheeler, former deputy director of the Federal Judicial Center, an education and research agency for the federal courts, says it’s possible that funders could be truly dedicated to improving judges’ understanding of the law.

But, he says, “You’ve got to be pretty naïve to believe that.”

“It’s the funders that create the problem,” says Stephen Gillers, a New York University law professor who specializes in legal ethics. “The money comes from interests that have matters before the courts, and they’d like to have those matters settled in their favor.”

“I’m not going to be snowed by anybody’s presentation.” — Chief Judge Thomas B. Bennett of the Northern District of Alabama Bankruptcy Court

Many of the seminars are conservative in nature, especially those hosted by George Mason. But there are a few exceptions. A June 2010 conference sponsored by the Open Society Institute, a foundation founded by liberal investor George Soros, focused mainly onhuman rights law. (The Center for Public Integrity and The Lens have received funding from Soros’ Open Society Foundations.)

Events hosted by the Sedona Conference, a nonprofit whose seminars address legal issues like antitrust law and intellectual property, have been funded primarily by law firms.

Speaking from the right

According to The Center for Public Integrity’s analysis, the person who spoke at more judicial conferences than any other was Butler, a professor and prominent conservative formerly of Northwesternand now executive director of George Mason’s Law & Economics Center.

He has taught judicial seminar courses with titles like “Economic Thinking” and “Economics of Insurance.” A former Republican candidate for Congress — he lost a 1992 bid — Butler was a “Koch Distinguished Professor of Law and Economics” at the University of Kansas.

Butler’s resume cites his “professional affiliations” with the conservative Federalist Society and the Mont Pelerin Society, which decries society’s loss of freedoms “fostered by a decline of belief in private property and the competitive market.”

Butler declined to be interviewed for this story. In response to emailed questions about George Mason’s judicial seminars, he wrote, “You seem to have a well-established theme to your story, accordingly we don’t see any advantage in collaborating with you.”

Daniel Polsby, dean of the George Mason University School of Law, also declined to answer questions for this story other than to say via email: “We’re very proud of the activities and programs of the Law & Economics Center.”

Another frequent seminar instructor is Terry L. Anderson, president of the Property and Environment Research Center, a conservative think tank “dedicated to improving environmental quality through property rights and markets.”

Anderson, a senior fellow at the conservative Hoover Institution, has regularly led “Free Market Environmentalism” lectures at conferences hosted by both George Mason and Northwestern.

Green energy’s ‘false promise’

In January 2011, Anderson was one of four lecturers who spoke at George Mason’s “Advanced Institute on Environmental Economics” conference, which was funded in part by ExxonMobil, BP America and Shell Oil.

The other three speakers were Andrew Morriss, co-author of the book “The False Promise of Green Energy”; Robert K. Fleck, an economics professor who has received thousands of dollars in research grants from the Charles G. Koch Charitable Foundation; and Jason Johnston, a former fellow with the Koch-funded, Anderson-led Property and Environment Research Center and a critic of efforts to reduce greenhouse gas emissions.

“I don’t express views” during lectures, says Anderson. He says his talks are based strictly on economic analysis. “None of my lectures are aimed at changing any judge’s opinion” about a case before them in court.

George Mason law professor Todd J. Zywicki, another regular judicial program speaker, has taught judges about issues like mortgage markets and consumer credit.

He is a senior scholar at the school’s conservative Mercatus Center, and has ties to the Goldwater Institute, a libertarian think tank, and the Competitive Enterprise Institute, which is “dedicated to advancing the principles of limited government, free enterprise, and individual liberty.” Zywicki did not respond to a request for comment.

George Mason “is known to stage conferences that have a conservative economic perspective,” says Gillers, the NYU law professor.

One frequent attendee of George Mason’s judicial seminars, Judge Bennett of Alabama bankruptcy court, told the Center “I’m not going to be snowed by anybody’s presentation.” He said he finds the seminars “infinitely invaluable.”

“You can accumulate information much more quickly than if you sit in your office and read stuff,” he says.

Bennett dismisses criticism of George Mason’s judicial conferences — even though he acknowledges that they often feature conservative voices.

“I believe they put on a fairly balanced program,” he says, noting that he doesn’t pay attention to who funds the conferences. “I’ve been to George Mason seminars where they’ve had people who are not conservative. It’s all in the eye of the beholder.”

Stacked panels?

Northwestern’s 2009 seminar titled “Criminalization of Corporate Conduct” included a speaker panel that was very corporate-friendly — something George Mason’s Henry Butler openly acknowledged during his presentation summing up the day’s events.

Butler noted “a question can be raised” about the panels’ balance and “do we have enough people here that are representing the prosecutor’s perspective.” (His remarks are posted onYouTube./maxresdefault.jpg).) “And I certainly can plead guilty to that accusation.”

“On the other hand,” he continued, “I have to explain to you that we’ve had difficulty in the past getting the U.S. attorneys to participate in these programs.”

The December 2010 “Climate Change Litigation” session hosted by George Mason’s Law & Economics Center was sponsored in part by BP America, ExxonMobil and Shell Oil, and featured four speakers.

Two were attorneys who have represented corporate clients like Koch Industries and ExxonMobil. A third speaker,Johnston, the former Property and Environment Research Center fellow,spent part of his presentation criticizing the American civil courts system for making American companies less competitive on the international stage.

Butler, who moderated the panel, acknowledged the imbalance as he introduced a last-minute replacement for the fourth panelist.

“Eric Mayer is going to be pro-public nuisance, climate-change litigation cases, and the other three are basically going to express some skepticism,” Butler said in his introduction, identifying Mayer, a lawyer who has represented plaintiffs as well as corporate defendants.

The announcement drew laughs from panelists and audience members.

“This may seem unbalanced,” Butler continued, “but Eric is not daunted by this challenge at all.”

Donor names disappear

The “transparency” policy regarding judicial trips may be weak, but the names of the corporations, foundations and individuals that pay for the conferences at least are available to the public.

Now, even that bit of sunshine is clouding over.

In 2012, George Mason’s Law & Economics Center began listing “xyz corp.,” as a sponsor before listing itself as the only donor on official disclosure documents. However, the think tank does provide a list of donors on its website.

The 2007 Judicial Conference policy allows such reporting if the support comes from general revenues or from endowments or gifts “not raised for the particular educational program or for the purpose of educating judges.”

Geyh, the Indiana University law professor, says the policy enables conference hosts to shield their donors and make it tough for judges to identify potential conflicts before attending seminars.

“It does raise transparency issues,” he says. “It strikes me as some semantic game-playing with the rules.”

This story was originally published by The Center for Public Integrity, which is a nonprofit, nonpartisan investigative news organization in Washington, D.C. It was reported and written by Chris Young, Reity O’Brien and Andrea Fuller; John Dunbar contributed.

Copyright 2013 The Center for Public Integrity

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http://www.law.gmu.edu/administration/butler_paige_vicker

Paige Butler has 17 years of experience in development and project leadership. She most recently oversaw these efforts for the Mason Law & Economics Center, which during the 2014-2015 academic year brought together 2,610 participants to learn about the academic discipline of law and economics. Program participants included scholars from top law schools; international, federal, and state judges; sitting state attorneys general and their staff; US Congressional members and staff; and policymakers from federal, state, and local levels of government.

During her tenure as Associate Director from 2010-2015, the Mason Law & Economics Center grew to include six divisions with an annual budget of $8.5 million.

Prior to joining Mason, Paige held positions at Northwestern University School of Law, The Brookings Institution,Chapman University, and the University of Kansas. In addition, she practiced law for ten years as corporate counsel to a large financial institution and served as their AVP of Business Development. She holds a JD from the University of Kansas as well as BS degrees in Accounting and Business Management

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Henry N. Butler

George Mason University | GMU · Law and Economics Center

14.02 · Ph.D., Economics, Va. Tech; J.D., U of Miami

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Jun 2015

George Mason University

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George Mason University | GMU

Law and Economics CenterFairfax, VA, United States

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GMU Foundation Professor

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Research

Research Items (32)

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Unlocking The Law: Building on the Work of Larry E. Ribstein

Article

Jan 2013

Henry N. ButlerBruce H. Kobayashi

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18 Reads

Sue, Settle, and Shut Out the States: Destroying the Environmental Benefits of Cooperative Federalism

Article

Jan 2013

Henry N. ButlerNathaniel J. Harris

Federal environmental policy has long relied on the states to assist in the development and implementation of environmental regulations. Under this “cooperative federalism,” states not only administer federal rules but also receive flexibility in setting standards and enforcement priorities. In recent years, environmental advocacy groups have increasingly succeeded in using a faux litigation strategy to effectively trample the statutory regulatory framework and to shut out the states from important policy decisions. As explained below, this policy-making process - called “sue-and-settle” or “suit-and-settlement” - not only violates the statutory framework, but also leads to haphazard policy making that should violate the standards of any serious policy analyst.

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Rules for Growth: Promoting Innovation and Growth Through Legal Reform

Article

Feb 2011

Robert E. LitanYochai BenklerHenry N. Butler[...]Benjamin Wittes

The United States economy is struggling to recover from its worst economic downturn since the Great Depression. After several huge doses of conventional macroeconomic stimulus - deficit-spending and monetary stimulus - policymakers are understandably eager to find innovative no-cost ways of sustaining growth both in the short and long runs. In response to this challenge, the Kauffman Foundation convened a number of America’s leading legal scholars and social scientists during the summer of 2010 to present and discuss their ideas for changing legal rules and policies to promote innovation and accelerate U.S. economic growth. This meeting led to the publication of Rules for Growth: Promoting Innovation and Growth Through Legal Reform, a comprehensive and groundbreaking volume of essays prescribing a new set of growth-promoting policies for policymakers, legal scholars, economists, and business men and women. Some of the top Rules include: • Reforming U.S. immigration laws so that more high-skilled immigrants can launch businesses in the United States. • Improving university technology licensing practices so university-generated innovation is more quickly and efficiently commercialized. • Moving away from taxes on income that penalize risk-taking, innovation, and employment while shifting toward a more consumption-based tax system that encourages saving that funds investment. In addition, the research tax credit should be redesigned and made permanent. • Overhauling local zoning rules to facilitate the formation of innovative companies. • Urging judges to take a more expansive view of flexible business contracts that are increasingly used by innovative firms. • Urging antitrust enforcers and courts to define markets more in global terms to reflect contemporary realities, resist antitrust enforcement from countries with less sound antitrust regimes, and prohibit industry trade protection and subsidies. • Reforming the intellectual property system to allow for a post-grant opposition process and address the large patent application backlog by allowing applicants to pay for more rapid patent reviews. • Authorizing corporate entities to form digitally and use software as a means for setting out agreements and bylaws governing corporate activities. The collective essays in the book propose a new way of thinking about the legal system that should be of interest to policymakers and academic scholars alike. Moreover, the ideas presented here, if embodied in law, would augment a sustained increase in U.S. economic growth, improving living standards for U.S. residents and for many in the rest of the world.

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199 Reads

Legal Process and the Discovery of Better Policies for Fostering Innovation and Growth

Article

Full-text available

Jan 2011

Henry N. ButlerLarry E. Ribstein

Our chapter concerns how legal process can lead to efficient policies for fostering innovation and growth. Future innovation will depend at least as much on how laws are made as on a priori analyses of the optimal content of those laws. Of particular importance is whether U.S. choice of law and choice of forum rules promote an efficient market for law. Our analysis supports three suggestions for improving the law to support growth. First, the rules governing the selection of the jurisdiction whose law governs productive activity can significantly affect growth and innovation. Second, any proposal aimed at increasing growth through a change in law or legal institutions should take account of the existence of multiple jurisdictions and parties’ ability to choose the jurisdiction whose law controls their transactions. Third, we suggest harnessing the power of jurisdictional competition among the states through a federal law enforcing contracting parties’ choice of law except to the extent states legislatively override the choice of law and regulate local transactions. We apply this analysis to several areas of the law that are critical to growth and innovation: non-competition clauses, business associations, the legal profession, internet law, insurance, property law, products liability, and franchise regulation.

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32 Reads

Policy Reversal on Reverse Payments: Why Courts Should Not Follow the New DOJ Position on Reverse-Payment Settlements of Pharmaceutical Patent Litigation

Article

Full-text available

Oct 2010

Henry N. ButlerJeffrey Paul Jarosch

In a recent policy reversal, the Department of Justice has, for the first time, pursued antitrust liability for “reverse payment” settlements. These settlements occur in the pharmaceutical industry when brand-name and generic-drug companies settle patent-infringement litigation. In a reverse-payment settlement, the generic-drug company agrees not to enter the market for some period of time and the patent holder agrees to give it something of value - often quarterly cash payments. The DOJ claims that such settlements should be analyzed under the rule of reason but in fact seeks an unwarranted presumption that reverse payments are unreasonably anticompetitive. At first glance, reverse-payment settlements do seem bad - they resemble anticompetitive market-division arrangements where one party pays another to stay out of the market. However, this Article’s more context specific economic analysis reveals that the effects of reverse payments are not obvious, can be procompetitive, and that a presumption of anticompetitive effect is thus unwarranted. Instead, courts should analyze them under the traditional rule of reason with no presumption for or against such settlements.

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71 Reads

Are State Consumer Protection Acts Really Little-FTC Acts?

Article

Full-text available

May 2010

Henry N. ButlerJoshua D. Wright

State Consumer Protection Acts (CPAs) were designed to supplement the Federal Trade Commission’s mission of protecting consumers and are often referred to as “little-FTC Acts.” There is growing concern that enforcement under these acts is not only qualitatively different than FTC enforcement, but may be counterproductive for consumers. This article examines a sample of CPA claims and compares them to the FTC standard. It identifies qualitative differences between CPA and FTC claims by commissioning a “Shadow Federal Trade Commission” of experts in consumer protection. The study finds that many CPA claims include conduct that would not be illegal under the FTC standards and that most of the cases with illegal conduct would not warrant FTC enforcement. Even among CPA cases where the plaintiff prevailed, nearly half do not include illegal conduct under the FTC standard and most of the cases with illegal conduct would not invoke FTC enforcement. The results clearly suggest private litigation under little-FTC Acts tends to pursue a different consumer protection mission than the Bureau of Consumer Protection at the Federal Trade Commission.

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278 Reads

Expansion of Liability under Public Nuisance

Article

Feb 2010

Henry N. ButlerTodd J. Zywicki

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Reforming State Consumer Protection Liability: An Economic Approach

Article

Aug 2009

Henry N. ButlerJason Scott Johnston

State Consumer Protection Acts (CPAs) were adopted in the 1960s and 1970s to protect consumers from unfair and deceptive practices that would not be redressed but for the existence of the acts. In this sense, CPAs were designed to fill existing gaps in market, legal and regulatory protections of consumers. From an economics perspective, CPAs were designed to solve two simple economic problems: 1) individual consumers often do not have the incentive or means to pursue individual claims against mass marketers who engage in unfair and deceptive practices; and, 2) because of the difficulty of establishing elements of either common law fraud or breach of promise, those actions alone are too weak an instrument to deter seller fraud and deception. The most striking lesson of our analysis is that the typical state CPA - with relaxed rules for establishing liability, statutory damages, damage multipliers, attorneys fees and costs, and class actions - solves the basic economic problem that CPAs were intended to address several times over. The effect of this redundancy in solutions is that CPAs can deter the provision of valuable information to consumers and, thus, harm consumers. That is, as currently applied state Consumer Protection Acts harm consumers. This need not be the case. A few modest reforms would dramatically improve the impact of CPAs on consumer welfare.

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32 Reads

The Single-License Solution

Article

Feb 2009

Henry N. ButlerLarry E. Ribstein

State regulation of insurance companies has long been criticized for increasing costs and limiting product innovation and rate competition as insurers attempt to conform to different states' codes. In response, it has been suggested that insurance regulation be federalized. This article proposes, instead, that insurers be allowed to operate nationally so long as they are licensed in one state. Doing this would provide 50 new licensing options for multi-state insurers. The single-license solution has the potential for triggering competition and innovation on insurance products and rates while preserving a role for meaningful state regulation.

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1 Read

Where was SOX?

Article

Dec 2008

Larry E. RibsteinHenry N. Butler

Believers in democracy should let shareholders opt out of expensive regulation.

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A Single-License Approach to Regulating Insurance

Article

May 2008

Henry N. ButlerLarry E. Ribstein

State regulation of insurance companies has been criticized for many years because of the burden imposed on insurers by having to comply with the laws of many jurisdictions. These higher costs are passed on to consumers. The problems with the current regulatory structure are prompting calls for increased federal regulation of insurance. However, all proposals to federalize insurance regulation create opportunities for abuse at the hands of the federal government and fail to utilize the benefits of a federal system. This article shows how many of the problems of the current system can be addressed without resorting to a large scale intrusion of federal regulators into insurance markets. The proposed solution calls for minimal federal intervention to provide for jurisdictional competition between states that would be allowed to charter insurers that could operate nationally with only the single license granted by the charter. This single-license approach addresses the most salient concerns of proponents of federal optional chartering. It also has the potential for triggering competition and innovation in insurance products and rates while preserving a meaningful role for state regulation.

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18 Reads

A Defense of Common Law Environmentalism: The Discovery of Better Environmental Policy

Article

Full-text available

Jan 2008

Henry N. Butler

A major problem with the current environmental regulatory regime is that it does not provide a reliable process for determining or discovering either the optimal amount of pollution or the most efficient means for achieving the selected level of pollution. This Article explains how the common law process, when coupled with competitive federalism, spontaneously leads to the discovery of better environmental policy. This analysis suggests that common law rules should be the presumptively optimal method of controlling local environmental harms. Common law processes allow for greater experimentation and innovation than do set and rigid statutory rules. Unlike rigid rules, the common law provides opportunities to adjust to changes in technology and societal preferences and to learn from experience. Part of the adjustment process is through private contracting. The common law evolves by self-correcting policy mistakes, whereas there are no such self-correcting mechanisms in centralized command-and-control regulations. Command-and-control bureaucrats and legislators are often oblivious to changes inherent in a dynamic world, but common law environmentalism and jurisdictional competition provide a dynamic process through which policy options are discovered and discarded in response to the reality of perpetual changes in technology and political preferences. The current regulatory regime is strengthened and reinforced by the common law - but making bad policy stronger is not a logical reason for championing the common law. The current regulatory regime constrains the evolution of the common law and thus limits the ability of the common law to evolve and discover better environmental policy. The benefits of common law environmentalism are likely to be even greater when coupled with devolution of authority to the states, thereby allowing greater opportunities for experimentation and learning from other jurisdictions. Many of the standard criticisms of common law environmentalism are overstated. In particular, the common law failure that motivated federal intervention is largely irrelevant to current debates about the virtue of the common law.

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48 Reads

Consumer Harm Acts? An Economic Analysis of Private Actions Under State Consumer Protection Acts

Article

Full-text available

Jan 2008

Henry N. ButlerJason Scott Johnston

State Consumer Protection Acts (CPAs) were adopted in the 1960s and 1970s to protect consumers from unfair and deceptive practices that would not be redressed but for the existence of the acts. In this sense, CPAs were designed to fill existing gaps in market, legal and regulatory protections of consumers. CPAs were designed to solve two simple economic problems: 1) individual consumers often do not have the incentive or means to pursue individual claims against mass marketers who engage in unfair and deceptive practices; and, 2) because of the difficulty of establishing elements of either common law fraud or breach of promise, those actions alone are too weak an instrument to deter seller fraud and deception. The most striking lesson of our analysis is that the typical state CPA – with relaxed rules for establishing liability, statutory damages, damage multipliers, attorneys fees and costs, and class actions – solves the basic economic problem that CPAs were intended to address several times over. The effect of this redundancy in solutions is that CPAs can deter the provision of valuable information to consumers and, thus, harm consumers. That is, as currently applied state Consumer Protection Acts harm consumers. This need not be the case. A few modest reforms would dramatically improve the impact of CPAs on consumer welfare.

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30 Reads

STATE TAKEOVER LEGISLATION, THE MARKET FOR CORPORATE CHARTERS, AND THE SCOPE OF FEDERAL INTERVENTION: A COMMENT ON HITZEMAN, INDIANA'S CONTROL SHARE ACQUISITION STATUTE

Article

Aug 2007

Henry N. Butler

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9 Reads

Smith v. Van Gorkom, Jurisdictional Competition, and the Role of Random Mutations in the Evolution of Corporate Law

Article

Full-text available

Aug 2006

Henry N. Butler

American corporate law has seen numerous changes that may be characterized as random mutations. Some mutations thrived, some died, but they all had a common trait - they were purposeful efforts to somehow improve corporate law. Natural selection through market forces determines whether one legislature's or one court's "improvement" is actually an improvement or a detriment. In American corporate law, the natural selection process is manifest through the Economic Darwinism of jurisdictional competition. For an evolutionary process to work, catalysts - akin to random mutations - must occur and cause changes. In this process, inadequate laws and poor judicial decisions may lead to the discovery of improved corporate law. The Delaware Supreme Court's decision in Smith v. Van Gorkom was just such a random mutation. Van Gorkom was a major and seemingly random change in the corporate law of fiduciary duties. It certainly took corporate law observers and commentators by surprise. And Van Gorkom's reverberations continue to be felt.

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86 Reads

The Sarbanes-Oxley Debacle: What We've Learned; How to Fix it

Article

Full-text available

Jun 2006

Larry E. RibsteinHenry N. Butler

This Abstract introduces the authors' new book, The Sarbanes-Oxley Debacle: What We've Learned; How to Fix It (The AEI Press 2006). The Sarbanes-Oxley Act of 2002 ("SOX") is a colossal failure, poorly conceived and hastily enacted during a regulatory panic. Everyone now concedes that the direct compliance costs of SOX have been much greater than anticipated. While that alone should give any serious policy analyst pause, the Act's defenders press the case that SOX was worth its problems. This book demonstrates that the supporters are wrong in their assessment: Both logic and evidence make it clear that SOX was a costly mistake.

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311 Reads

Externalities and the Matching Principle: The Case for Reallocating Environmental Regulatory Authority

Article

Full-text available

Jan 1996

Jonathan MaceyHenry N. Butler

The extreme centralization of environmental regulation is the result of interest group politics and dramatic political developments rather than a sober analysis of the major trade-offs involved in moving to federal domination of environmental protection. During the late 1960s and early 1970s, many environmental concerns that had previously been thought of as purely local issues, such as solid waste disposal, became federal issues. Although there is little doubt that national politicians were ahead of the curve in terms of responding to environmental concerns, one must not then assume that state and local politicians would have continued to be unresponsive to environmental issues arising in their own backyards. Nevertheless, there appears to be a one way ratchet in the federal system-once a federal issue, always a federal issue. Moreover, among many environmentalists, there remains a deep distrust of state and local control of environmental quality. An analysis of the incentives of state and local politicians suggests that this distrust may not be justified. This study considers whether environmental policy can be improved by reallocating authority for environmental regulation within our federal system.

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33 Reads

Using Federalism to Improve Environmental Policy

Article

Jan 1996

Bruce D. McDowellHenry N. ButlerJonathan Macey

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5 Reads

Health care reform: perspectives from the economic theory of regulation and the economic theory of statutory interpretation

Article

Full-text available

Oct 1994

Henry N. ButlerJonathan Macey

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43 Reads

The Impact of Recent Banking Regulations on the Market for Corporate Control

Article

Full-text available

Jan 1990

Henry N. ButlerJ. Brady Dugan

Part II of this Article briefly discusses the historical development of the regulation of bank capital, focusing on the 1989 risk-based capital adequacy regulations as well as the 1989 highly leveraged transaction guidelines and their impact on the banking industry's involvement in takeover transactions. This section also shows how the perverse incentives created by the present system of federal deposit insurance impact on the takeover market. Part III discusses the role of thrifts in corporate takeovers and the effect of the Financial Institutions Reform, Recovery and Enforcement Act of 1989, including its prohibition on thrifts' purchasing junk bonds. The concluding section speculates as to why these seemingly unwise regulations were adopted.

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45 Reads

The Contractual Theory of the Corporation

Article

Full-text available

Jan 1989

Henry N. Butler

The modem corporation is one of the most successful inventions in history, as evidenced by its widespread adoption and survival as a primary vehicle of capitalism over the past century. Economists, however, have only recently begun to understand the economic nature of the corporation. In the last fifteen years, the economic theory of the firm has advanced from a struggle with the identification of the economic conditions that lead to the formation of firms to a discourse on sophisticated issues concerning intrafirm relationships. As a consequence of these developments, economists have come to view the firm as a "nexus of contracts" among participants in the organization. When applied to the corporate form of organization, the theory of the firm is often referred to as the contractual theory of the corporation.This paper offers a summary of the contractual theory of the corporation and considers some of its general implications for corporate law. Section I sets the stage for the discussion by presenting a summary of the traditional legal view of the modem corporation. Section II presents a summary of the theory of the firm as it relates to corporate organization. Section III describes the market and contractual constraints that force managers of large, dispersed-owner corporations to act in their shareholders' best interests. Section IV considers the implications of the contractual theory of the corporation for private ordering of corporate governance issues. Section V offers some concluding comments.

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550 Reads

General incorporation in nineteenth century England: Interaction of common law and legislative processes

Article

Feb 1986

Henry N. Butler

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12 Reads

Antitakeover Amendments, Managerial Entrenchment, and the Contractual Theory of the Corporation

Article

Nov 1985

Barry D. BaysingerHenry N. Butler

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10 Reads

Corporate governance and the board of directors: Performance effects of changes in board composition

Article

Mar 1985

Barry D. BaysingerHenry N. Butler

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106 Reads

The Role of Corporate Law in the Theory of the Firm

Article

Feb 1985

Barry D. BaysingerHenry N. Butler

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10 Reads

Corporate Governance and the Board of Directors: Performance Effects of Changes in Board Composition

Article

Feb 1985

Barry D. BaysingerHenry N. Butler

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288 Reads

Nineteenth-Century Jurisdictional Competition in the Granting of Corporate Charters

Article

Jan 1985

Henry N. Butler

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6 Reads

Research Symposium on Economics and Law of the Entrepreneur

Article

Henry N. ButlerDaniel F. SpulberElinor Hobbs[...]Joaquín Poblete

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A Jurisdictional Competition Approach to Reforming Insurance Regulation

Article

Henry N. Butler

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1 Read

Instead of federal chartering, states should compete with each other to produce efficient insurance regulation

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Henry N. Butler

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The Myth of Competition in the Dual Banking System

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Jonathan MaceyHenry N. Butler

The American banking system operates under a dual state and federal system of chartering and safety and soundness regulation. The dual banking system ostensibly allows banks operating in any state to choose between two different sets of primary laws to define their powers and to regulate their activities and investments. Banks may obtain a national charter and fall under the regulatory aegis of the Comptroller of the Currency, or they may obtain a state charter from the chartering state's primary banking regulator and fall under its regulatory aegis. In addition, within this system state banks can further decide whether to subject themselves to federal regulation by becoming members of the Federal Reserve System (Fed) or by insuring deposits through the Federal Deposit Insurance Corporation (FDIC).

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Stated monthly meeting, March 19, 1941

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Jan 1941

Henry N. Butler

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