ACTION: Notice of promulgation of temporary, emergency amendments to the sentencing guidelines and commentary.
SUMMARY: The Commission has promulgated two temporary, emergency amendments to the sentencing guidelines as follows: (1) pursuant to sections 805, 905, and 1104 of the Sarbanes-Oxley Act of 2002, Pub. L. 107–204, and its general authority under 28 U.S.C. § 994, the Commission has promulgated amendments to §§2B1.1 (Larceny, Embezzlement, and Other Forms of Theft; Offenses Involving Stolen Property; Property Damage or Destruction; Fraud and Deceit; Forgery; Offenses Involving Altered or Counterfeit Instruments Other than Counterfeit Bearer Obligations of the United States), 2E5.3 (False Statements and Concealment of Facts in Relation to Documents Required by the Employee Retirement Income Security Act; Failure to Maintain and Falsification of Records Required by the Labor Management Reporting and Disclosure Act), 2J1.2 (Obstruction of Justice), and 2T4.1 (Tax Table), and Appendix A (Statutory Index); and (2) pursuant to section 314 of the Bipartisan Campaign Reform Act of 2002, Pub. L. 107–155, and its general authority under 28 U.S.C. § 994, the Commission has promulgated a new guideline in Chapter Two, Part C (Offenses Involving Public Officials), and amendments to §§3D1.2 (Groups of Closely Related Counts), and 5E1.2 (Fines for Individual Defendants), and Appendix A (Statutory Index). The Commission also has requested public comment, to be submitted to the Commission not later than March 17, 2003, regarding repromulgation of these two temporary, emergency amendments as permanent amendments (see the issue of the Federal Register published on January 17, 2003).
DATES: The Commission has specified an effective date of January 25, 2003, for the temporary, emergency amendments set forth in this Notice.
SUPPLEMENTARY INFORMATION: The United States Sentencing Commission is an independent agency in the judicial branch of the United States Government. The Commission promulgates sentencing guidelines and policy statements for federal courts pursuant to 28 U.S.C. § 994(a). The Commission also periodically reviews and revises previously promulgated guidelines pursuant to 28 U.S.C. § 994(o) and submits guideline amendments to the Congress not later than the first day of May of each year pursuant to 28U.S.C. § 994(p). The Commission also may promulgate emergency amendments prior to the first day of May if required to do so by specific congressional legislation.
The Commission has promulgated two temporary, emergency guidelines in response to specific congressional legislation. First, in response to the Sarbanes-Oxley Act, the Commission has promulgated an amendment that increases the penalties for corporate fraud and offenses involving the obstruction of justice. Second, in response to the Bipartisan Campaign Reform Act of 2002, the Commission has promulgated an amendment that provides a new guideline and increased penalties for offenses involving a violation of Federal election campaign laws. The Commission has specified an effective date of January 25, 2003, for both amendments.
Additional information pertaining to the amendments described in this notice may be accessed through the Commission’s website at www.ussc.gov.
AUTHORITY: Sections 805, 905, and 1104 of the Sarbanes-Oxley Act of 2002, Pub. L. 107–204; section 314 of the Bipartisan Campaign Reform Act of 2002, Pub. L. 107–155; 28 U.S.C. § 994(a), (o), (p), (x); USSC Rules of Practice and Procedure, Rule 4.4.
(i) ‘Mass-marketing’ means a plan, program, promotion, or campaign that is conducted through solicitation by telephone, mail, the Internet, or other means to induce a large number of persons to (I) purchase goods or services; (II) participate in a contest or sweepstakes; or (III) invest for financial profit. ‘Mass-marketing’ includes, for example, a telemarketing campaign that solicits a large number of individuals to purchase fraudulent life insurance policies.
and by redesignating subdivisions (vi) and (vii) as subdivisions (v) and (vi), respectively.
(P) More than $400,000,000 36.".
Reason for Amendment: This amendment implements directives to the Commission contained in sections 805, 905, and 1104 of the Sarbanes-Oxley Act of 2002, Pub. L. 107–204 (the "Act"), by making several modifications to §2B1.1 (Larceny, Embezzlement, and Other Forms of Theft; Offenses Involving Stolen Property; Property Damage or Destruction; Fraud and Deceit; Forgery; Offenses Involving Altered or Counterfeit Instruments Other than Counterfeit Bearer Obligations of the United States) and §2J1.2 (Obstruction of Justice). The directives pertain to serious fraud and related offenses and obstruction of justice offenses. The directives require the Commission under emergency amendment authority to promulgate amendments addressing, among other things, officers and directors of publicly traded companies who commit fraud and related offenses, fraud offenses that endanger the solvency or financial security of a substantial number of victims, fraud offenses that involve significantly greater than 50 victims, and obstruction of justice offenses that involve the destruction of evidence.
First, the amendment addresses the directive contained in section 1104(b)(5) of the Act to "ensure that the guideline offense levels and enhancements under United States Sentencing Guideline §2B1.1 (as in effect on the date of enactment of this Act) are sufficient for a fraud offense when the number of victims adversely involved is significantly greater than 50." The amendment implements this directive by expanding the existing enhancement at §2B1.1(b)(2) based on the number of victims involved in the offense. Prior to the amendment, subsection (b)(2) provided a two level enhancement if the offense involved more than 10, but less than 50, victims (or was committed through mass-marketing), and a four level enhancement if the offense involved 50 or more victims. The amendment provides an additional two level increase, for a total of six levels, if the offense involved 250 or more victims. The Commission determined that an enhancement of this magnitude appropriately responds to the pertinent directive and reflects the extensive nature of, and the large scale victimization caused by, such offenses.
Second, the amendment addresses directives contained in sections 805 and 1104 of the Act pertaining to securities and accounting fraud offenses and fraud offenses that endanger the solvency or financial security of a substantial number of victims. Specifically, section 805(a)(4) directs the Commission to ensure that "a specific offense characteristic enhancing sentencing is provided under United States Sentencing Guideline 2B1.1 (as in effect on the date of enactment of this Act) for a fraud offense that endangers the solvency or financial security of a substantial number of victims." In addition, section 1104(b)(1) directs the Commission to "ensure that the sentencing guidelines and policy statements reflect the serious nature of securities, pension, and accounting fraud and the need for aggressive and appropriate law enforcement action to prevent such offenses." The amendment implements these directives by expanding the scope of the existing enhancement at §2B1.1(b)(12)(B).
Prior to the amendment, §2B1.1(b)(12)(B) provided a four level enhancement and a minimum offense level of 24 if the offense substantially jeopardized the safety and soundness of a financial institution. The amendment expands the scope of this enhancement by providing two additional prongs. The first prong applies to offenses that substantially endanger the solvency or financial security of an organization that, at any time during the offense, was a publicly traded company or had 1,000 or more employees. The addition of this prong reflects the Commission’s determination that such an offense undermines the public’s confidence in the securities and investment market much in the same manner as an offense that jeopardizes the safety and soundness of a financial institution undermines the public’s confidence in the banking system. This prong also reflects the likelihood that an offense that endangers the solvency or financial security of an employer of this size will similarly affect a substantial number of individual victims, without requiring the court to determine whether the solvency or financial security of each individual victim was substantially endangered.
A corresponding application note for §2B1.1(b)(12)(B) sets forth a non-exhaustive list of factors that the court shall consider in determining whether the offense endangered the solvency or financial security of a publicly traded company or an organization with 1,000 or more employees. The list of factors includes references to insolvency, filing for bankruptcy, substantially reducing the value of the company’s stock, and substantially reducing the company’s workforce among the list of factors that the court shall consider when applying the new enhancement, and other factors not enumerated in the application note could be considered by the court as appropriate.
The amendment also modifies the application note of the previously existing prong of §2B1.1(b)(12)(B), the financial institutions enhancement, to be consistent structurally with the new prongs of the enhancement. Prior to the amendment, the presence of any one of the factors enumerated in the application note would trigger the financial institutions enhancement under §2B1.1(b)(12)(B). Under the amendment, the application note to the financial institutions enhancement sets forth a non-exhaustive list of factors that the court shall consider in determining whether the offense substantially jeopardized the safety and soundness of a financial institution. The list of factors that the court shall consider when applying this enhancement includes references to insolvency, substantially reducing benefits to pensioners and insureds, and an inability to refund fully any deposit, payment, or investment on demand.
The second prong added to §2B1.1(b)(12)(B) by the amendment applies to offenses that substantially endangered the solvency or financial security of 100 or more victims, regardless of whether a publicly traded company or other organization was affected by the offense. The Commission concluded that the specificity of the directive in section 805(a)(4) required an enhancement focused specifically on conduct that endangers the financial security of individual victims. Thus, use of this prong of the enhancement will be appropriate in cases in which there is sufficient evidence for the court to determine that the amount of loss suffered by individual victims of the offense substantially endangered the solvency or financial security of those victims. The Commission also determined that the enhancement provided in §2B1.1(b)(12)(B) shall apply cumulatively with the enhancement at §2B1.1(b)(2), which is based solely on the number of victims involved in the offense, to reflect the particularly acute harm suffered by victims of offenses for which the new prongs of subsection (b)(12)(B) apply.
Third, the amendment addresses the directive contained at section 1104(a)(2) of the Act to "consider the promulgation of new sentencing guidelines or amendments to existing sentencing guidelines to provide an enhancement for officers or directors of publicly traded corporations who commit fraud and related offenses." The amendment implements this directive by providing a new, four level enhancement at §2B1.1(b)(13) that applies if the offense involved a violation of securities law and, at the time of the offense, the defendant was an officer or director of a publicly traded company. The Commission concluded that a four level enhancement appropriately reflects that an officer or director of a publicly traded company who commits such an offense violates certain heightened fiduciary duties imposed by securities law upon such individuals. Accordingly, the court is not required to determine specifically whether the defendant abused a position of trust in order for the enhancement to apply, and a corresponding application note provides that, in cases in which the new, four level enhancement applies, the existing two level enhancement for abuse of position of trust at §3B1.3 (Abuse of Position of Trust or Use of Special Skill) shall not apply.
The corresponding application note also expressly provides that the enhancement would apply regardless of whether the defendant was convicted under a specific securities fraud statute (e.g., 18 U.S.C. §1348, a new offense created by the Act specifically prohibiting securities fraud) or under a general fraud statute (e.g., 18 U.S.C. § 1341, prohibiting mail fraud), provided that the offense involved a violation of "securities law" as defined in the application note.
Fourth, the amendment expands the loss table at §2B1.1(b)(1) to punish adequately offenses that cause catastrophic losses of magnitudes previously unforeseen, such as the serious corporate scandals that gave rise to several portions of the Act. Prior to the amendment, the loss table at §2B1.1(b)(1) provided sentencing enhancements in two level increments up to a maximum of 26 levels for offenses in which the loss exceeded $100,000,000. The amendment adds two additional loss amount categories to the table; an increase of 28 levels for offenses in which the loss exceeded $200,000,000, and an increase of 30 levels for offenses in which the loss exceeded $400,000,000. These additions to the loss table address congressional concern regarding particularly extensive and serious fraud offenses, and more fully effectuate increases in statutory maximum penalties provided by the Act (e.g., the increase in the statutory maximum penalties for wire fraud and mail fraud offenses from five to 20 years set forth in section 903 of the Act). The amendment also modifies the tax table in §2T4.1 in a similar manner to maintain the longstanding proportional relationship between the loss table in §2B1.1 and the tax table.
The amendment also adds a new factor to the general, enumerated factors that the court may consider in determining the amount of loss under §2B1.1(b)(1). Specifically, the amendment adds the reduction in the value of equity securities or other corporate assets that resulted from the offense to the list of general factors set forth in Application Note 2(C) of §2B1.1. This factor was added to provide courts additional guidance in determining loss in certain cases, particularly in complex white collar cases.
Fifth, the amendment modifies §2J1.2 to address the directives pertaining to obstruction of justice offenses contained in sections 805 and 1104 of the Act. Specifically, section 805(a) of the Act directs the Commission to ensure that the base offense level and existing enhancements in §2J1.2 are sufficient to deter and punish obstruction of justice offenses generally, and specifically are adequate in cases involving the destruction, alteration, or fabrication of a large amount of evidence, a large number of participants, the selection of evidence that is particularly probative or essential to the investigation, more than minimal planning, or abuse of a special skill or a position of trust. Section 1104(b) of the Act further directs the Commission to ensure that the "guideline offense levels and enhancements for an obstruction of justice offense are adequate in cases where documents or other physical evidence are actually destroyed or fabricated."
The amendment implements these directives by making two modifications to §2J1.2. First, the amendment increases the base offense level in §2J1.2 from level 12 to level 14. Second, the amendment adds a new two level enhancement to §2J1.2. This enhancement applies if the offense (i) involved the destruction, alteration, or fabrication of a substantial number of records, documents or tangible objects; (ii) involved the selection of any essential or especially probative record, document, or tangible object to destroy or alter; or (iii) was otherwise extensive in scope, planning, or preparation. The Commission determined that existing adjustments in Chapter Three for aggravating role, §3B1.1, and abuse of position of trust or use of special skill, §3B1.3, adequately account for those particular factors described in section 805(a) of the Act.
Sixth, the amendment addresses new offenses created by the Act. Section 1520 of title 18, United States Code, relating to destruction of corporate audit records, is referenced to §2E5.3 (False Statements and Concealment of Facts in Relation to Documents Required by the Employee Retirement Income Security Act; Failure to Maintain and Falsification of Records Required by the Labor Management Reporting and Disclosure Act; Destruction and Failure to Maintain Corporate Audit Records). Section 1520 provides a statutory maximum penalty of ten years’ imprisonment for knowing and willful violations of document maintenance requirements as set forth in that section or in rules or regulations to be promulgated by the Securities and Exchange Commission pursuant to that section. The amendment also expands the existing cross reference in §2E5.3(a)(2) specifically to cover fraud and obstruction of justice offenses. Accordingly, if a defendant who is convicted under 18 U.S.C. § 1520 committed the offense in order to obstruct justice, the amendment to the cross reference provision requires the court to apply §2J1.2 instead of §2E5.3. Other new offenses are listed in Appendix A (Statutory Index), as well as in the statutory provisions of the relevant guidelines.
648. Amendment: Chapter Two, Part C is amended in the heading by adding at the end "AND VIOLATIONS OF FEDERAL ELECTION CAMPAIGN LAWS".
The Commission believes that pre-guidelines sentencing practice did not adequately reflect the seriousness of public corruption offenses. Therefore, these guidelines provide for sentences that are considerably higher than average pre-guidelines practice.".
Reason for Amendment: This amendment implements the directive from Congress contained in the Bipartisan Campaign Reform Act of 2002, Pub. L. 107–155, (the "BCRA") to the effect that the Commission "promulgate a guideline, or amend an existing guideline . . ., for penalties for violations of the Federal Election Campaign Act of 1971 (the "FECA") and related election laws . . .". The BCRA significantly increased statutory penalties for campaign finance crimes, formerly misdemeanors under the FECA. The new statutory maximum term of imprisonment for even the least serious of these offenses is now two years and for more serious offenses, the maximum term of imprisonment is five years.
To effectively punish these offenses, the Commission chose to create a new guideline at §2C1.8 (Making, Receiving, or Failing to Report a Contribution, Donation, or Expenditure in Violation of the Federal Election Campaign Act; Fraudulently Misrepresenting Campaign Authority; Soliciting or Receiving a Donation in Connection with an Election While on Certain Federal Property). The Commission opted against simply amending an existing guideline because it determined after review that the characteristics of election-violation cases did not bear sufficient similarity to cases sentenced under any existing guideline. The offenses which will be sentenced under §2C1.8 include: violations of the statutory prohibitions against "soft money" (2 U.S.C. § 441i); restrictions on "hard money" contributions (2 U.S.C. § 441a); contributions by foreign nationals (2 U.S.C. § 441e); restrictions on "electioneering communications" as defined at 2 U.S.C. §434(f)(3)(C)); certain fraudulent misrepresentations (2 U.S.C. § 441h); and "conduit contributions" (2 U.S.C. § 441f).
The new guideline has a base offense level of level 8, which reflects the fact that these offenses, while they are somewhat similar to fraud offenses (sentenced under §2B1.1 (Theft, Property Destruction, and Fraud) at a base offense level of level 6), generally are more serious due to the additional harm, or the potential harm, of corrupting the elective process.
The new guideline provides five specific offense characteristics to ensure appropriate penalty enhancements for aggravating conduct which may occur during the commission of certain campaign finance offenses. First, the new guideline provides a specific offense characteristic, at §2C1.8(b)(1), that uses the fraud loss table in §2B1.1 to incrementally increase the offense level in proportion to the monetary amounts involved in the illegal transactions. This both assures proportionality with penalties for fraud offenses and responds to Congress’ directive to provide an enhancement for "a large aggregate amount of illegal contributions."
Second, the new guideline provides alternative enhancements, at §2C1.8(b)(2), if the offense involved a foreign national (two levels) or a foreign government (four levels). These enhancements respond to another specific directive in the BCRA and reflect the seriousness of foreign entities attempting to tamper with the United States’ election processes.
Third, the new guideline provides alternative two level enhancements, at §2C1.8(b)(3), when the offense involves either "governmental funds," defined broadly to include Federal, State, or local funds, or an intent to derive "a specific, identifiable non-monetary Federal benefit" (e.g., a presidential pardon). Each of these enhancements responds to specific directives of the BCRA.
Fourth, the new guideline provides a two level enhancement, at subsection (b)(4), when the offender engages in "30 or more illegal transactions." After a review of all campaign finance cases in the Commission’s datafile, the Commission chose 30 transactions as the number best illustrative of a "large number" in that context. This enhancement also responds to a specific directive in the BCRA to the effect that the Commission provide enhanced sentencing for cases involving "a large number of illegal transactions."
Fifth, the new guideline provides a 4 level enhancement, at §2C1.8(b)(5), if the offense involves the use of "intimidation, threat of pecuniary or other harm, or coercion." This enhancement responds to information received from the Federal Election Commission and the Public Integrity Section of the Department of Justice which characterizes offenses of this type as some of the most aggravated offenses committed under the FECA.
The new guideline also provides a cross reference, at subsection (c), which directs the sentencing court to apply either §2C1.1 or §2C1.2, as appropriate, if the offense involved a bribe or a gratuity and the resulting offense level would be greater than that determined under §2C1.8.
Section 3D1.2 (Groups of Closely Related Counts) has been amended, consistent with the principles underlying the rules for grouping multiple counts of conviction, to include §2C1.8 offenses among those in which the offense level is determined largely on the basis of the total amount of harm or loss or some other measure of aggregate harm. (See §3D1.2(d)).
Finally, §5E1.2 (Fines for Individual Defendants) has been amended to specifically reflect fine provisions unique to the FECA. This part of the amendment also provides that the defendant’s participation in a conciliation agreement with the Federal Election Commission may be an appropriate factor for use in determining the specific fine within the applicable fine guideline range unless the defendant began negotiations with the Federal Election Commission after the defendant became aware that he or it was the subject of a criminal investigation.


D.C. Law Library - § 31–1372.02. General 3% diversification, medium and lower grade investments, and Canadian investments.
↪ § 31–1372.02. General 3% diversification, medium and lower grade investments, and Canadian investments.
(a)(1) Except as otherwise specified in this chapter, an insurer shall not acquire, directly or indirectly through an investment subsidiary, an investment under this chapter if, as a result of and other giving effect to the investment, the insurer would hold more than 3% of its admitted assets in investments of all kinds issued, assumed, accepted, insured, or guaranteed by a single person.
(2) The 3% limitation shall not apply to the aggregate amounts insured by a single financial guaranty insurer with the highest generic rating issued by a nationally recognized statistical rating organization.
(3) Asset-backed securities shall not be subject to the limitations of paragraph (1) of this subsection; provided, that an insurer shall not acquire an asset-backed security if, as a result of and after giving effect to the investment, the aggregate amount of asset-backed securities secured by or evidencing an interest in a single asset or single pool of assets held by a trust or other business entity held by the insurer would exceed 3% of its admitted assets.
(B) The aggregate amount of lower grade investments issued, assumed, guaranteed, accepted, or insured by any one person or, as to asset-backed securities secured by or evidencing an interest in a single asset or pool of assets, then held by the insurer would exceed 0.5% of its admitted assets.
(3) If an insurer attains or exceeds the limit of any rating category referred to in this subsection, the insurer shall not be precluded from acquiring investments in other rating categories subject to the specific and multi-category limits applicable to those investments.
(c)(1) An insurer shall not acquire, directly or indirectly through an investment subsidiary, a Canadian investment authorized by this chapter if, as a result of and after giving effect to the investment, the aggregate amount of these investments then held by the insurer would exceed 40% of its admitted assets or if the aggregate amount of Canadian investments not acquired under § 31-1372.03(b) held by the insurer would exceed 25% of its admitted assets.
(B) One hundred fifteen percent of the amount of its reserves and other obligations under contracts on lives or risks resident or located in Canada.
This section is referenced in § 31-1372.03, § 31-1372.04, § 31-1372.05, § 31-1372.06, § 31-1372.07, § 31-1372.08, § 31-1372.09, and § 31-1372.12.


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The ScholarOne site will not be accepting submissions for this issue until March 2019.
Culture is the combination of shared philosophy that differentiates people between various groups (Hofstede, 1991). Therefore, individuals from different cultures/groups would react differently to a single phenomenon. For example, in terms of gesture, people from different cultures use the thumb finger to communicate with their non-verbal expressions; however, the same signal may convey dissimilar meaning to people of different cultures (Kita, 2009). Similarly, organizational knowledge management initiatives in diverse socio-economic settings, including government, non-government and business practices would lead to a detrimental outcome or would not be able to convey the right message, at the right time to the right target audience prolifically, if the cross-cultural issues are not considered in such initiatives. For example, an ad/promotional flyer of a business/brand that contains a culturally consistent dialogue and corresponding image draws the most constructive responses, in comparison to the promotional efforts that contain different dialogues and images (Teng et. al., 2014). Furthermore, a specific organizational procedure that would be appropriate for the target audience of one culture would not be suitable for the target audience of another culture (Hofstede, 1984). Therefore, considering the cross-cultural issues is especially important for organizational knowledge management, aiming to the cross-cultural target audience (Huang et. al., 2013).
Culture is also acknowledged as the blend of values, beliefs and assumptions that an individual inherits from her/his early childhood environment (Hofstede et. al., 2010). These cultural philosophies engrained in people’s mind in their childhood, and influence their decision making, which appears as a dimension of difference in human behaviour from culture to culture (Steenkamp, 2001; Steenkamp and Kumar, 1999). Following this cultural mindset on different cultural philosophies, different stakeholders, e.g. customers evaluate the alternate competitive value propositions (Kotler, 2003), in relation to their value anticipation. Stakeholders are overwhelmed with information about the competitive value propositions today (Berner and Tonder, 2003). These stakeholder information, stakeholder knowledge and stakeholders’ mobility, income and search costs form/reform stakeholders’ expectation about their estimated value on a particular issue to act on it (Kotler, 2003), which persuasively impact on their value perceptions about the available competitive offerings. Since, the society is culturally broaden its horizons; in today’s multicultural society, considering ethnic dimensions play a crucial role in effective organizational knowledge management, related to different business and non-business decision makings (Bent et. al., 2007; Chan, 2006; Ownbey and Horridge, 1997).
The discussion thus far acknowledges that considering the cross-cultural issues in organizational knowledge management is important for effective sense making across the different cultural settings; however, there are “barriers to knowledge management (KM) due to various national cultural dimensions” (Ray, 2014, p. 45), which are under-researched. For example, only “few studies have investigated either on the real differences in the factors of knowledge transfer within different cultural contexts or the reasons behind these differences” (Hua Li, et al., 2014, p. 279). Focusing on the cross-cultural global setting, “recent studies show that still a lot of KM projects fail (Coakes et al, 2010) and not all…factors are clearly understood” (Pawlowski and Bick, 2012, p. 1). Researchers argue that “the current understanding of when and how knowledge transfer leads…(to) success is still limited” (Ahammad et al., 2016, p. 66). Furthermore, we do not have adequate understanding on managing and transferring knowledge effectively in the multi-cultural organizations (Hajro et al., 2017).
“Insight into organizational responses to stakeholder claims and influence attempts is critical to understand the challenges currently facing managers and organizations” (Weitzner and Deutsch, 2015, p. 1337). However, the extant literature on organization – stakeholder relationships “does not provide much insight into organizational factors that lead organizations to attend to the different stakeholder or to implement stakeholder practices (cf. Bundy et al., 2013). Moreover, empirical work in the strategic management literature has failed to address these shortcomings” (Mena and Chabowski, 2015, p. 430). “Much remains unknown about how organizations learn about multiple stakeholders. This is unfortunate given the increasing importance organizations place on meeting their stakeholders’ demands” (Mena, Tomas and Hult, 2017, p. 177). For example, in terms of organizational transparency as stakeholder relationship management construct, Schnackenberg and Tomlinson (2016) argue that “it is not clear exactly how the construct should be conceptualized, how it relates to managing trust in the organization-stakeholder relationship, or how organizations manage it” (p. 1785). To respond to this significant research gap in organization – stakeholder relationships, relying on the organization-wide knowledge management processes, i.e. knowledge acquisition and knowledge distribution (Huber, 1991; Sinkula, 1994), focusing on the key stakeholders would be instrumental to unlock the potential progress of this under-researched area in organizational studies at the intersection of cross-cultural stakeholders’ knowledge management for improved organizational efficacy.
loyalty (Berry, 1995; Dimitriadis and Stevens, 2008) and so forth.
Analysing the “cause and consequence of stakeholder relationships and interactions as a stakeholder causal scope (SCS)” (Shams, 2016b, p. 141) would be instrumental to recognise the diverse scopes and (existing and emergent) extents of stakeholder relationships, based on trust, satisfaction, commitment and other SRM constructs. For example, such relationship building opportunities could be acknowledged in cross-cultural settings, based on an organization’s interactions and learning experience with their stakeholders (e.g. service encounter) to acquire knowledge about the stakeholders, in order to improve their organizational efficacy. From this context, this special issue aims to contribute to this under-researched area of cross-cultural issues in organizational knowledge management to enrich our understanding on how analysing SCS and/or different SRM constructs in a cross-cultural organizational setting would be instrumental to improve organizational efficacy, based on effective cross-cultural stakeholders’ knowledge management.
future research propositions on the role of SCS analysis for cross-cultural OKM and so forth.
Special issue will be published in late 2019 / early 2020.
A special issue workshop will be organised in November 2018 at the Ural Federal University, Russia. Neither participating in this author workshop guarantees acceptance of a paper, nor participating in this workshop is a prerequisite for acceptance a paper for this special issue.
All papers submitted to the European Business Review will undergo a double-blind peer review process. The manuscripts should be structured in line with the guidelines, available at http://www.emeraldgrouppublishing.com/products/journals/author_guidelines.htm?id=ebr . Please submit your manuscript through this web link https://mc.manuscriptcentral.com/ebrev , and select this special issue “Cross-cultural Knowledge Management” from the drop-down menu for your submission. Informal inquiries are valued and can be directed to the guest editors.
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matches: V. V. V. V. V. V. V.


49 CFR 571.221 - Standard No. 221; School bus body joint strength. § 571.221 - Standard No. 221; School bus body joint strength.
§ 571.221 - Standard No. 221; School bus body joint strength.
S1. Scope. This standard establishes requirements for the strength of the body panel joints in school bus bodies.
S2. Purpose. The purpose of this standard is to reduce deaths and injuries resulting from the structural collapse of school bus bodies during crashes.
S4. Definitions. Body component means a part of a bus body made from a single piece of homogeneous material or from a single piece of composite material such as plywood.
Body panel means a body component used on the exterior or interior surface to enclose the bus' occupant space.
Body panel joint means the area of contact or close proximity between the edges of a body panel and another body component, including but not limited to floor panels, and body panels made of composite materials such as plastic or plywood, excluding trim and decorative parts which do not contribute to the strength of the bus body, members such as rub rails which are entirely outside of body panels, ventilation panels, components provided for functional purposes, and engine access covers.
Bus body means that portion of a bus that encloses the bus occupant space, including the floor, but excluding the bumpers and chassis frame and any structure forward of the passenger compartment.
Maintenance access panel means a body panel which must be moved or removed to provide access to one or more serviceable component(s).
Passenger compartment means space within the school bus interior that is between a vertical transverse plane located 762 mm in front of the forwardmost passenger seating reference point and including a vertical transverse plane tangent to the rear interior wall of the bus at the vehicle centerline.
Serviceable component means any part of the bus, of either a mechanical or electrical nature, which is explicitly identified by the bus chassis and/or body manufacturer in the owner's manual or factory service manual as requiring routine maintenance actions at intervals of one year or less. Tubing, wires and harnesses are considered to be serviceable components only at their attachments.
S5.1.1 Body panels attached to each other shall have no unattached segment at the joint longer than 203 mm.
(a) Any interior maintenance access panel or joint which lies forward of the passenger compartment.
(b) Any interior maintenance access panel within the passenger compartment that does not exceed 305 mm when measured across any two points diametrically on opposite sides of the opening.
(c) Trim and decorative parts which do not contribute to the strength of the joint, support members such as rub rails which are entirely outside of body panels, doors and windows, ventilation panels, and engine access covers.
S6.1 Preparation of the test specimen.
S6.1.1 If a body panel joint is 203 mm or longer, cut a test specimen that consists of any 203 mm segment of the joint, together with a portion of the bus body whose dimensions are those specified in Figure 1, so that the specimen's centerline is perpendicular to the joint at the midpoint of the joint segment. Where the body panel joint is not fastened continuously, select the segment so that it does not bisect a spot weld or a discrete fastener. Support members which contribute to the strength of a body panel joint, such as rub rails on the outside of body panels or underlying structure attached to joint members, shall remain attached to the test specimen, except that material may be removed from the support members as necessary to clear the gripping areas of the joint members being tested.
S6.1.2 If a joint is less than 203 mm long, cut a test specimen with enough of the adjacent material to permit it to be held in the tension testing machine specified in S6.3.
S6.1.3 Prepare the test specimen in accordance with the preparation procedures specified in ASTM E8-89 (incorporated by reference, see § 571.5).
(a) If the mechanical properties of a joint component material are specified in ASTM E8-89 (incorporated by reference, see § 571.5), the lowest value of that material's thickness and tensile strength per unit of area shown in that source shall be used.
(b) If the mechanical properties of a material are not specified in ASTM E8-89 (incorporated by reference, see § 571.5), determine its tensile strength by cutting a sheet specimen from outside the joint region of the bus body in accordance with Figure 1 of ASTM E8-89, and by testing it in accordance with S6.3.
(c) The cross sectional area of material removed to facilitate the installation of fasteners shall be subtracted from the cross-sectional area of the panel in the determination of the tensile strength of the weakest joined body panel.
S6.3.1 The joint specimen is gripped on opposite sides of the joint in a tension testing machine in accordance with ASTM E8-89 (incorporated by reference, see § 571.5).
S6.3.2 Adjust the testing machine grips so that the applied force on the joint is at 90 degrees plus or minus 3 degrees from the joint centerline, as shown in Figure 1.
S6.3.3 A tensile force is applied to the specimen by separating the heads of the testing machine at any uniform rate not less than 3 mm and not more than 10 mm per minute until the specimen separates.
[41 FR 3872, Jan. 27, 1976, as amended at 41 FR 36027, Aug. 26, 1976; 67 FR 64366, 64367, Dec. 13, 2002; 68 FR 6360, Feb. 7, 2003; 77 FR 768, Jan. 6, 2012] Editorial Note:At 65 FR 11754, Mar. 6, 2000, § 571.221 was amended by revising S5.2.1(a);however, the paragraph did not exist, and the amendment could not be incorporated.


While Congress can create fee-shifting statutes, 35 U.S.C. § 145 did not reflect explicit congressional authorization for fee-shifting that would displace the American Rule.
NantKwest filed suit in district court under 35 U.S.C. § 145 to contest the PTO’s rejection of its patent application. The USPTO prevailed and filed a motion for reimbursement of all of its litigation expenses, including attorney’s fees. 35 U.S.C. § 145 requires that “all expenses of the proceeding be paid by the applicant,” which the USPTO claimed included their fees and costs.
The district court denied the PTO’s motion with respect to attorney’s fees. Under the “American Rule,” each party to a proceeding is generally required to pay their own attorney’s fees regardless of the outcome, which precluded the PTO from recovering fees. The PTO appealed to the Federal Circuit, where a split panel reversed the district court. The panel found that the “all expenses” language of 35 U.S.C. § 145 allowed the PTO to recover attorney’s fees, despite the American Rule. The Federal Circuit then voted sua sponte to hear the appeal en banc and vacated the panel’s judgment.
In the en banc proceeding, the Federal Circuit found Supreme Court precedent mandated that the American Rule must be applied as a starting point when determining whether attorney’s fees should be shifted between parties. While Congress can create fee-shifting statutes, 35 U.S.C. § 145 did not reflect explicit congressional authorization for fee-shifting that would displace the American Rule. The Court examined the historical meaning of “expenses” in Section 145, and well as modern definitions, and found that “expenses” generally did not include attorney’s fees. The Court also considered a body of case law wherein expenses and attorney’s fees were two separate categories of reimbursements and compared Section 145 with language in other areas of the Patent Act, such as 35 U.S.C. § 285, where “attorney’s fees” language was explicitly included for recovery purposes. Ultimately, the PTO could not recover attorney’s fees as the prevailing party under Section 145 and the Court affirmed the district court’s denial of the PTO’s motion for attorney’s fees.
Judge Prost dissented, joined by Judges Dyk, Reyna, and Hughes. She concluded that the plain language of Section 145 requiring that the applicant must pay all expenses of the proceedings, which would include attorney’s fees. Judge Prost looked at language regarding the meaning of “expenses” in the Patent Act of 1836 and found that Congress understood that “salaries,” including those for attorneys, were within the scope of “expenses” recoverable by the PTO. The dissent also found that differences in language concerning expenses and attorney’s fees between Section 145 and Section 285 were not significant for the purpose of statutory construction. Section 145 allows patent applicants to contest the PTO’s rejection of their patent in district court. Therefore, attorney’s fees under this Section should be viewed as akin to examination expenses that are “a part of the application for the patent” and the responsibility of the applicant, rather than traditional attorney’s fees in litigation.
An applicant who challenges an adverse decision of the Patent and Trademark Office in district court is not required to pay the Patent and Trademark Office’s attorney’s fees.
Interesting. Would love to know when it makes sense to go the district court route.
Notice: all of the most inventor-antagonistic Judges joined against the petitioner, except for Judge Taranto (“…Prost, C.J., joined by Dyk, Reyna, and Hughes, J.”).
5. high level “conferences” sporting hand wringing over ‘what can be done to restore innovation’, again with No Inventors Present (I’ve seen references to at least five in the past year or so).
Unless and until a body representative of inventors’ interests that has credibility in its community is allowed a seat at the tables of power, there will be no change in the present situation of serfdom for all but the largest U.S. corporations, and innovation will be hosted elsewhere in the world, other than in the U.S.A.
If the PTAB, a division of the USPTO, changes their mind and clobbers a patent that the USPTO has already approved, then the USPTO should be required to reimburse the inventor for all costs, damages, expenses relating to PTAB, plus interest, since they are stating they made a mistake!!


text:
If [the] Declaration [of Independence] is not the truth, let us get the statute book in which we find it and tear it out!
Justice Scalia visited, in April 1997, the campuses of Loyola University of Chicago. His talks during his well-received visit drew upon his book, A Matter of Interpretation (1997).
Among the Justice’s public appearances was a convocation, on April 7, 1997, which heard papers by three Loyola faculty members and his response to those papers. Although Justice Scalia can at times be somewhat unfortunate in the way he expresses himself, I am not concerned here with any personal failings that he like the rest of us may have, but rather with the intellectual failings of several generations of Anglo-American legal scholars who have helped shape his jurisprudence.
Among the things said by me on our April 7th panel, which the Justice was moved to notice, were observations about the pervasiveness of his jurisprudence, about his opinions with respect to the Declaration of Independence, and about the constitutional status of capital punishment. I will consider briefly each of these topics in turn.
Let me say a few words about Professor Anastaplo’s remarks. Gee, I’m glad to know I’m in the mainstream, Professor Anastaplo, it really feels good. Although, of course, I’m still not in the mainstream of academia.
He then alluded to differences between us about whether homosexuals should be considered “a politically powerful minority” and about whether affirmative action can ever be constitutionally permitted.
It is fortunate, considering how accommodating Justice Scalia has been as a much-prized guest of this university, that the questions I am now obliged to pose about the arguments he has made, both in his recently-published book and in his talks here, have little to do with him personally. What I question is a school of thought of which he happens, for the moment, to be a particularly influential spokesman. The underlying problem here is with the legal education that has been available in this country since the Second World War, with the more prestigious and hence the more sophisticated the law school one is associated with, the worse the legal training one is likely to receive in critical respects.
The primary criticism I will be making on this occasion can be directed not only at Justice Scalia but also at his critics: both he and most of them are votaries one way or another of contemporary social science . . .
shares in principle, however much he may dissent on secondary points which are not really as important as they may for the moment appear.
I will say more, further on, about how positivism bears upon the status both of our constitutional documents and of the common law, topics upon which positivists have had much to say for almost two centuries now.
that legal positivism places law on a plane apart from any moral norms. It regards all such norms as being subjective in nature; thus they cannot be treated as having objective validity. Positive law, however, in the sense that it is the law of the state, can be ascertained without regard to moral considerations.
b. those who hold that there are principles of natural law, criteria of justice, and natural rights that enable us to determine whether laws and constitutions are just or unjust and, if unjust, in need of rectification and amendment.
There [we] find the sophist, Thrasymachus, arguing against Socrates, saying that “justice is nothing but the interest of the stronger” and Socrates trying to refute Thrasymachus by defining justice without any regard to the edicts or laws of those with the might to enforce them.
According to Thrasymachus, those with the power to ordain and enforce the laws of the land call those who obey their laws just subjects, and those who disobey them unjust. The words “just” and “unjust” have no other meaning, certainly no meaning whereby a despotic tyrant or a tyrannical majority, ruling in self-interest, not for the good of the ruled, can be called unjust.
With the statement that justice is nothing but the interest of the stronger, we have the origin of the doctrine that might is right, for those with the might to govern are the only ones who can determine what is right and wrong.
The position taken by Thrasymachus is taken later by the Roman jurisconsult Ulpian for whom “whatever pleases the prince has the force of the law,” and still later by Thomas Hobbes in his Leviathan where he declares that, in any community, what is just and unjust is wholly determined by the positive or man-made laws enacted by those with the power to ordain and enforce them. In the nineteenth century, the positivist view is advanced by Jeremy Bentham in his Principles of Morals and Legislation, and by John Austin in his Province of Jurisprudence Determined, and in the twentieth century it is advanced by professors in American law schools who call themselves legal realists.
On the other side, the naturalist view initiated by Socrates in his dispute with Thrasymachus finds amplification in Aristotle’s distinction between natural and legal justice; in Cicero’s discussion of [the] natural; in Augustine’s statement that “an unjust law is a law in name only” (representing might without right, power without authority); in Aquinas’s philosophy of law wherein principles of justice are antecedent to, independent of, and applicable to positive or man-made laws; and in the doctrine of modern philosophers, such as John Locke and Immanuel Kant, for whom natural rights preexist positive, man-made laws and become the basis for assessing their justice and injustice.
b. acts that are wrong in themselves, whether or not they are prohibited by positive law (such as murdering human beings or enslaving them).
I notice in passing that it is a curious feature of Justice Scalia’s “makeup” that he evidently is not aware of how much legal positivism, with its tendency toward moral relativism and away from natural law/natural right doctrines, is discouraged by the Roman Catholicism to which he is known to be a devout adherent. We can be reminded here of how much one’s religious allegiance is likely to be determined by circumstances.
Circumstances may also have inclined Antonin Scalia to conservatism (just as most liberals may be shaped by their circumstances)–by such circumstances or accidents as temperament, career opportunities, and political associations, to say nothing of divine providence. It should at once be added that intellectuals, including some judges, are not as respectful of nature and justice as practicing politicians have to be.
One can see, upon studying Justice Scalia’s arguments, why Harry Jaffa regards such people as unreliable allies as conservatives. (Liberals, too, can be unreliable in similar ways.) Indeed, Professor Jaffa can speak of “the mainstream” as a polluted stream.
I turn now to my differences with Justice Scalia with respect to the Declaration of Independence.
If someone challenges the “wisdom” of our day about the common law–that common law upon which the Constitution rests–it need not be because he is being presumptuous. Rather, it can merely reflect the reluctance of a true conservative to repudiate the sensible teachings and steady practice by centuries of thoughtful jurists in the Anglo-American legal tradition, a tradition grounded in turn on the natural-right/natural-law tradition that the modern legal realist cavalierly disavows, thereby helping Rome to burn.
This disavowal extends to ignoring the Declaration of Independence in constitutional interpretation, even though that document is identified in the first volume of the United States Statutes at Large as one of the four organic laws of the United States. Symptomatic of this neglect is the failure of the United States Supreme Court in Brown v. Board of Education (1954) to refer to the Declaration of Independence, even though the ruling in that case redeemed the “created equal” language of the Declaration as it came to be applied in the Fourteenth Amendment. It will hardly do to say, as Justice Scalia with many others says, that the Constitution is not really “aspirational” in its terms and tone.
I don’t think the Declaration of Independence is part of our law. It was drafted before the federal government even existed. The Declaration of Independence, unlike the Constitution, unlike the Bill of Rights, is an aspirational document! That’s where you hear such wonderful stuff [about] life, liberty, and the pursuit of happiness . . .
The Declaration of Independence is aspirational. That’s something you inspire people with, it’s not something you go to a law court with.
The Bill of Rights, on the other hand, has none of that philosophical poppycock in it. It’s quite precise. “Trial by jury in all civil matters involving more than $20″–that’s not the French Declaration of the Universal Rights of Man. It’s not aspirational, it’s law! The Declaration of Independence was not law, so I do not apply it in my opinions.
Only on the naturalist view does the great second paragraph of the Declaration of Independence proclaim self-evident truths. On the positivist view, it is, as Jeremy Bentham claimed at the time, a piece of flamboyant rhetoric, aimed at winning converts to the cause of the rebellion, but without an ounce of truth in its pious proclamations about unalienable rights and how governments, which derive their just powers from the consent of the governed, are formed to make preexisting natural rights more secure.
Philosophical poppycock seems a shorthand way of summing up Bentham’s “flamboyant rhetoric . . . without an ounce of truth in its pious proclamations.” Certainly, Justice Scalia does not seem to appreciate the constitutional system implicit in the Declaration of Independence. In addition, he has a limited view of what law is–and what it rests upon. The Declaration of Independence, we must remember, does not purport to create or lay down the law, but rather to reveal and reaffirm it–and it is this that provides the grounding for the Constitution of 1787 and for repeated efforts to improve the Constitution since its ratification.
Or course, Justice Scalia, like most of us, is derivative: he is not a primary source of the arguments he makes. Perhaps the most important immediate influence upon him are Oliver Wendell Holmes, Jr. and his disciples, with the Holmes influence (which can be traced back at least to Thomas Hobbes) transmitted through people such as Felix Frankfurter and Edward H. Levi, and to a lesser extent through Learned Hand and Louis Brandeis.
[In] an era that was anxious to perpetuate the illusion that judicial decision making was somehow different from other kinds of official decision making, since judges merely “found” or “declared” law, Holmes demonstrated that judging was inescapably an exercise in policymaking. This insight was a breath of fresh air in a stale jurisprudential climate. Against the ponderous intonations of other judges that they were “making no laws, deciding no policy, [and] never entering into the domain of public action,” Holmes offered the theory that they were doing all those things. American jurisprudence was never the same again.
The object of this book is to present a general view of the Common Law. To accomplish the task, other tools are needed besides logic. It is something to show that the consistency of a system requires a particular result, but it is not all. The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been, and what it tends to become. We must alternately consult history and existing theories of legislation. But the most difficult labor will be to understand the combination of the two into new products at every stage. The substance of the law at any given time pretty nearly corresponds, so far as it goes, with what is then understood to be convenient; but its form and machinery, and the degree to which it is able to work out desired results, depend very much upon its past.
The emphasis on experience and history in this Holmes book is, in effect, an emphasis on chance, unless there is something to which human beings and their communities look in determining what experiences to have and how to deal with them. Vital here is the status of nature and a prudence-guided natural right (or natural law) in the Holmes scheme of things, a status which is much lowered if not virtually eliminated, when that scheme is compared with those left us by, say, Cicero and Thomas Aquinas.
This is the sort of approach, which sees law as very much dependent upon calculation, which Justice Scalia and others of his disposition have picked up. One consequence is an often exaggerated reliance upon economic analysis for an understanding of the law and of what judges do.
Legal positivism tends to lead to an insensitive reading of the Constitution and, depending upon the temperament and political inclinations of an interpreter, to an unreliable assessment of the powers of the Government of the United States. The Anti-Federalists were correct in noticing in 1787-1789 that the scope of the powers available to the proposed national government was virtually unlimited, something that the more astute nationalists also recognized from the beginning. Recent cases such as National League of Cities v. Usery (1976), United States v. Lopez (1995), and Printz v. United States (1997) can be little more than temporary obstacles in the way of exercising the considerable national power required in contemporary circumstances.
Professor Anastaplo thinks “cruel and unusual “may not mean the same today as it did before. Well, I suppose we may not think it cruel today when they may have before. Why does it have to be a one-way street? Do you think that maybe the framers had it in their minds to really oppose cruel and unusual punishments–not any particular ones. We just don’t want punishments to be cruel and unusual, whatever that might mean? If a future generation might think that thumbscrews are not cruel and unusual, and we think they are, then that’s okay. The only thing we’re really against is cruel and unusual, in the abstract. That’s surely not what they meant. They meant to stop those things that they found abhorrent in the future, not just an invitation to the courts to make up the rules from age to age.
How is the language of 1787 to be read? Constitutional terms such as Commerce and Army and Navy now have a much broader scope, in a sense, than they did two centuries ago. They, and other terms, do depend somewhat upon circumstances. This includes the vital terms in the Due Process Clauses: the process that is due may depend upon legislation as well as upon changing customs.
Should we be surprised by the argument that the Framers expected that what was considered cruel might change with the times? Certainly, this had changed in the Framers’ own lifetime. Certainly, also, when unusual is spoken of, that does seem to suggest that bearings might properly to taken by what was usual–and might not that change from time to time?
The Framers might even have found relevant, in considering what is indeed cruel and unusual (and hence questionable) here, what is done around the world about capital punishment. The more civilized countries of the West seem to have abandoned it, by and large (except, of course, for the United States), while the most extensive tyranny on earth today is steadily increasing the number of its executions (with some six thousand last year). That there are serious problems with how we mete out capital punishment is suggested not only by the recent American Bar Association call for a moratorium on executions in this country but also by the reservations that have been expressed in Illinois by experienced lawyers (including respected former prosecutors).
At the heart of the problem here is the fact that the best things are not being read by these “conservative” polemicists. Nor do they really study the Constitution. The most that they might rely upon is the Federalist–but that is a tricky set of essays to work with, however instructive they can be for someone who studies them properly in their New York political context.
Do I believe that there are other rights besides those listed in the Bill or Rights? You bet I do. And I will take to the barricades if somebody tries to take away some of those rights.
For example, the right to have my children educated according to my wishes, to have the values I want imparted to them, and not those of Big Brother. And if the government tries to take that away from me, I will take up arms against it if I have any arms left.
One may well begin a critique here by considering the use of such terms as values and Big Brother. Underlying this grounding in a radical individualism is a questionable opinion about the role of the community in the shaping of the morals of its citizens, including those of one’s own children. A good deal can be said, that is, for the legislation of morality. It should suffice on this occasion to notice that the Scalia declaration of independence may be unduly self-centered as well as ultimately destructive of an ethical community. For example, his declaration fails to recognize such factors as the role of the community in establishing “values” and even in determining who one’s children are for various purposes. In this failing Justice Scalia can be likened to the more extreme “pro-choice” advocates.
But then, Oliver Wendell Holmes, who served gallantly during the Civil War–and on the right side–was himself curiously unaffected by the best of Abraham Lincoln’s thought. How this “tone deafness,” in Justice Holmes and his disciples down to our day, is to be understood remains a mystery that might well be investigated on another occasion.
Only a great fool would call the new political science diabolic: it has no attributes peculiar to fallen angels. It is not even Machiavellian, for Machiavelli’s teaching was graceful, subtle, and colorful. Nor is it Neronian. Nevertheless one may say of it that it fiddles while Rome burns. It is excused by two facts: it does not know that it fiddles, and it does not know that Rome burns.
It is fortunate, considering how accommodating Justice Scalia has been as a much-prized guest of this university, that the questions I am now obliged to pose about the arguments he has made, both in his recently-published book and in his talks here, have little to do with him personally. What I question is a school of thought of which he happens, for the moment, to be a particularly influential spokesman. The underlying problem here is with the legal education that has been available in this country since the Second World War, with the more prestigious and hence the more sophisticated the law school one is associated with, the worst the legal training one is likely to receive in critical respects.
My observations are informed by what I perceive to be at the core of the failings and hence the fiddling of most legal scholarship today. Illustrative of these failings is how the 1892 case of Church of the Holy Trinity v. United States is dealt with by Justice Scalia in his book. We can, if necessary, consider in our discussion period the Congressional statute interpreted in the Holy Trinity case–but nothing more needs to be said at this point about that legislation, except to notice that Justice Scalia argues that the statute was deliberately misconstrued a century ago by the Supreme Court in order to achieve a result that the Justices liked better than what would have followed from applying literally what Congress had ordained.
Justice Scalia sees this case as an early experiment in what he considers to have become a massive abuse: more and more reliance by lawyers and judges upon “legislative history” in place of the plain words of the relevant legislation. But when one consults the 1892 Holy Trinity opinion itself (for a unanimous Court), one finds something far more important for us today than the details of the particular case–and that is what was taken for granted by the Court (as well as by the attorneys for both parties), the principle that reasonableness and common sense (with a view to justice and the general welfare) should be used to avoid absurd results in judicial proceedings. This principle was not the invention of that 1892 Court. Rather, the Court invoked longstanding and highly-respected authority in support of its approach.
Justice Scalia regards himself, of course, as a textualist and originalist–and it is salutary to have so distinguished a champion of reliance upon the document itself. It would be even more salutary to have that reliance be sound and persuasive when it gets down to specifics. Thus, Justice Scalia speaks of the Bill of Rights as having “certainly caused the federal powers conferred by the original body of the document to be more limited than they originally were.” (p. 141). There is little if any evidence, however, to support this assertion. The one thing that the framers of the Bill of Rights were determined to do, which is obvious upon surveying the dozens upon dozens of proposed amendments to the Constitution which they systematically rejected, was to leave the powers of the national government unimpaired–and this they succeeded in doing. (See, for example, Anastaplo, The Amendments to the Constitution , pp. 298-314.) Indeed, for the most part, the Bill of Rights affirmed rights already recognized and enjoyed by the American people. (This is eloquently testified to by the Ninth Amendment.) The rights recognized by the Bill of Rights probably should have been considered also applicable against the States from the beginning–and they would certainly come to be considered thus as one result of the Civil War.
Although I have long been sympathetic to the kind of concern Justice Scalia has expressed about judicial legislation, I must dissent from his lamentation about what has been done to cripple the powers of government (and hence, in effect, the powers of the community) by courts and their apologists. But, just as no amendment to the Constitution has ever cut down any significant power intended by the Framers for the national government, so few if any judicial rulings have permanently deprived that government of any significant powers.
Whatever Justice Scalia may happen to believe, government today is more powerful in effect than it ever has been in this country, perhaps necessarily so. The problem is not with the acknowledged powers of government but rather with the judgment of the people as to whether and how those powers should be used. Thus, for example, just as there was always the power in the national government to abolish the destructive “interstate” traffic in slaves, so there is now the power (but hardly the political will) to abolish television, that glorified fiddling which subverts our institutions (including our influential sports) and enslaves our citizens.
Justice Scalia misconceives the problems here when he decries, as he does in his book, the current tyranny by a powerful few. But, then, we can recall how he spoke last year, in his Romer v. Evans dissenting opinion, of still-highly-vulnerable homosexuals in this country as “a politically powerful minority.” We are verging, with such talk, upon the absurdity that the Court in Holy Trinity suggested we should be sensitive to. Also absurd, and in some ways irresponsible, are some of the things we are hearing these days to the effect that affirmative-action measures can never be properly used in good-faith efforts to minister to chronic and even dangerous racial disparities.
The critiques I have collected here are anything but new. This should again assure us that the reservations I have ventured to express about Justice Scalia’s constitutionalism are directed not against him personally but rather against the dominant scholarly opinion today, a positivistic opinion which our esteemed guest shares in principle, however much he may dissent on secondary points which are not really as important as they may for the moment appear.
Emeritus of Political Science and of Philosophy, Dominican University.
The remarks, “On Justice Scalia’s Constitutionalism,” were prepared for a Conference with Justice Antonin Scalia, Loyola University of Chicago, Chicago, Illinois, April 7, 1997.
The remarks, “In re Antonin Scalia,” were prepared for a Roundtable on Antonin Scalia, Claremont Institute for the Study of Statesmanship, . American Political Science Association Convention, Washington, D.C., August 28, 1997.

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