"A Constitutional Right to Be Treated Like . . . Ladies": Women, Civic Obligation and Military Service

The different obligation of men and women for military service--and the concomitant issues of men and women's different capacity for and control of violence, aggression and force--has been a minimally examined aspect of a gendered political culture. As I write, an intense debate on the range of gender identity which the military will permit is underway. This debate was initiated by the Secretary of Defense's order to reconsider the combat exemption for women serving as pilots and on warships, and by the reconsideration of the ban on openly gay and lesbian members of the military, resulting in the "don't ask, don't tell" regulation. This discussion is taking place in the context of an all-volunteer army, and has not yet addressed directly the implications of obligatory combat service for women.

In the essay which follows, I consider the most recent public debate on whether all citizens, including women, ought to be obligated to bear arms. This debate took place in 1979-81, in the context of President Carter's proposal for universal draft registration. That debate was embedded in the diffuse public discussion of the implications of the Equal Rights Amendment; in the focused debates in Congress, which passed a male-only draft registration law instead of Carter's recommendation (the title of this paper comes from a Congressional witness); and in arguments conducted within the Supreme Court, which denied the claim of a group of young men that male-only registration subjected them to unequal treatment under the law. In Section I, I describe the Vietnam era origins of the case that ultimately reached the U.S. Supreme Court as Rostker v. Goldberg. In Section II, I offer some reflections on the relationship of women to war-making in the past. Section III discusses the military services women have performed in American wars. Section IV is an effort to set President Jimmy Carter's proposal of universal draft registration in the context of Rostker and follows the case to its conclusion; Section V offers some final reflections.

Politics of Deposit Insurance Reform: The Case of Argentina

This paper — which draws on extensive interviews conducted in December 1992 with present and former Argentine government officials, politicians, economists, and attorneys — analyzes the government's decision to abolish all forms of deposit insurance for banks. I address the following questions.

First, has Argentina actually repealed deposit insurance? The Menem government's claim that it will not back deposits in failed banks has not yet been put to the test, as there have been no major bank failures in Argentina since the repeal of deposit insurance. If a big bank did fail, the question is whether the government would be able to withstand the political pressures to bail out the bank's depositors--particularly in a political culture such as that of Argentina, where the government has traditionally assumed the responsibility (albeit one incompetently fulfilled) for protecting the welfare of its citizens. Even if the government were able to withstand a single bank failure, would it adhere to a strict no-bailout policy if the failure of one bank led to systemic panic? In other words, what has the government done to precommit in a reliable fashion to not bailing out depositors in a failed bank even in the face of overwhelming political pressure to do so?

It turns out that the Menem government has provided a surprisingly high level of assurance to domestic and international financial markets that it will not rescue a failing bank or its depositors. Legislation passed in 1992 bars the central bank from offering any form of deposit insurance, either implicit or explicit, and prohibits assistance to troubled banks except short term loans on good security. The central bank must also hold gold or foreign currency reserves at least equal to the domestic monetary base, a requirement that might be violated if the central bank were to bail out depositors in a major bank failure. Interviews conducted for this article revealed remarkable consensus among knowledgeable persons that the government will not rescue a failing bank.

This is not to say that the government's commitment to the repeal of all forms of deposit insurance would hold in the event of a nationwide banking panic, or that a new government (elections are scheduled for 1995) would adhere to the no-bailout policy. It appears, however, that the Menem government has accomplished as much as could reasonably be expected in convincing the relevant actors that there really is no deposit insurance in Argentina today.

A second question raised by Argentina's recent reforms concerns the underlying politics. In the United States, despite the disastrous failures of the deposit insurance funds for the savings and loan and banking industries over the past ten years, deposit insurance repeal appears to be politically unthinkable. What was different about Argentina?

Although the repeal of deposit insurance in Argentina was part of a complex process extending over at least a decade, the principal factors appear relatively straightforward. First, Argentina was in the midst of a catastrophic economic crisis at the time deposit insurance was repealed. Hyperinflation and economic deterioration had driven the country--one of the richest nations in the world in 1930--into the status of a third world nation.

As a result, the public reached a remarkable consensus that radical reforms were needed to shrink the bloated state-owned industrial base and deregulate the economy. There was surprisingly little political opposition to the basic elements of Menem's program of radical privatization and deregulation; indeed, the opposition Radical Party has sometimes claimed that Menem is simply implementing programs that it conceived.

Although one affected interest group--foreign banks--had no real objection to the repeal of deposit insurance, other major interest groups--domestic Argentine banks and financial institutions--did oppose repeal. However, all were willing to accept substantial limitations on the scope of the program. In addition, all banks recognized that Menem's overall agenda of market liberalization was in their interest, and their support for the broader program muted their opposition to deposit insurance reform. Further, and quite importantly, the economic collapse had driven most private deposits out of the banking system. Thus, the domestic banks which were principally affected by the repeal were not able to call on a substantial base of private depositors to support them in resisting deposit insurance repeal. In the end, the government's mandate to implement radical reforms overwhelmed the banking industry's lukewarm resistance to deposit insurance repeal.

A third question is how Argentine banks responded to the recent reforms. Have private arrangements replaced the government safety net? If so, how effective have these responses been?

It appears that repeal of deposit insurance has had some effects: private banks now offer varying interest rates on deposits; Argentine banks are seeking lines of credit from foreign banks and are organizing for mutual support in the event of a financial crisis; and private rating organizations are being established. As yet, there have been no significant runs on uninsured banks, nor have there been any major bank failures since deposit insurance was abolished. It is still too early to determine whether private market mechanisms will provide effective substitutes for deposit insurance.

This article is organized as follows. Part I addresses the general economic background, and Part II considers the reforms themselves. Part III analyzes the forces that allowed the changes to occur, addresses the question whether implicit deposit insurance remains in Argentina, and considers the strategies which the private sector has adopted to respond to the elimination of the government safety net.

Credibly Committing to Efficiency Wages: Cotton Spinning Cartels in Imperial Japan

First, Japanese cotton spinning firms paid their workers generously. By tradition, Japan specialists accuse the cotton spinning firms of much the same sins of which observers accused the Lancashire mills: that they exploited their workers by paying them a pittance and exploited consumers by funding prices. The claims probably were not true of Lancashire. Neither were they true of Japan. The Japanese mills paid their workers double or triple the wage they could earn elsewhere and charged consumers market-clearing prices.

Second, as in the large Lancashire mills, these high wages constituted what economists call "efficiency wages" – supra-market wages that boosted productivity by at least the amount of the wage premium itself. Mill owners apparently paid these high wages because of the unfamiliar technology they used. At the turn of the century, they used foreign machines in a foreign factory system. They knew neither how much to expect from their workers, nor, given the team character to the production involved, how best to monitor those workers. Rather than hire many managers to supervise their workers closely, they tried to induce their employees to work hard with little monitoring. They did so by raising the penalty workers incurred if they lost their job, and they raised that penalty by paying double or triple the market-clearing wage.

Third, efficiency wages potentially compounded the agency slack between the mill owners and their managers. Although the managers left some control over major decisions (like large capital investments) with the owners, they themselves supervised the daily operations of the firm. Necessarily, however, they could give the owners only noisy information about the details of factory operations and only incomplete information about the industry's demand curve. In turn, these informational problems created an environment where a manager sometimes jeopardized his tenure if he reduced his plant's production. As a result, short- term managers had an incentive to operate the plant at full capacity even when the reduced demand would have led the owners themselves to idle some machines.

This situation sometimes gave managers an incentive to respond to sudden drops in demand by cutting wages. Because the firm intentionally paid workers a steady premium over the workers' shadow wage, it needed managers who would respond to these demand shocks primarily by cutting production. If managers instead merely cut wages, workers would eventually shirk more, efficiency would eventually fall, and the firm's profits would eventually fall as well.

Finally, managers and investors solved this principle-agent problem through a cartel. In joining the cartel, the managers delegated decisions about production cuts to the cartel's officers – independent personnel outside the firm. In the process, they tied their own hands and credibly committed themselves to responding to demand shocks by cutting production. In the process, they also removed their own incentive to respond to demand shocks by cheating on the firm's efficiency wage premium. In effect, they thereby protected their firm's efficiency wage regime from themselves.

In the next section, I summarize the history of cotton spinning in Japan. In Section II, I outline why the cartel that the spinning firms established could not have earned them monopoly rents. I conclude, in Section III, by using their efficiency wage labor contracts to explain why they formed the cartel they did.

Comment: In Defense of Environmental Rights in East European Constitutions

Western experts have extensively counseled East European constitution drafters regarding the dangers of including various social and economic rights within their constitutions. These advisors often criticize provisions that guarantee a right to a clean environment or make the protection of the environment a duty of the state. Such provisions are condemned as holdovers from the old communist constitutions and are branded as unenforceable or as luxuries that the bankrupt economies of Eastern Europe cannot afford. Each of these arguments has some grounds for support.

However, the environmental provisions within East European constitutions could be both enforceable and effective if the drafters applied the lessons learned from 20 years of experience under U.S. state constitutions' environmental provisions. More than 30 U.S. states have constitutional provisions that deal with either the environment or specific natural resources. The successes and failures of these state constitutions' environmental provisions suggest how to draft such provisions to be self-executing and enforceable.

The East Europeans should implement enforceable environmental laws, both constitutional and statutory; for them, environmental protection is a necessity, not a luxury. Eastern Europe is an environmental disaster area. Forty-five years of communism resulted in lives significantly shortened by exposure to pollution, forests destroyed by acid rain, waters polluted with industrial waste and sewage, and air unbreathable in many places. The transformation of Eastern Europe's economies to capitalism will have a significant impact on the environment. Ernst U. von Weizacker of the Institute for Climate, Environment, and Energy in Germany commented that "[blureaucratic socialism collapsed because it did not allow prices to tell the economic truth. [A m]arket economy may ruin the environment and ultimately itself if prices are not allowed to tell the ecological truth." Essentially, von Weizacker is calling for sustainable development. The World Commission on Environment and Development, appointed by the U.N. General Assembly, defined sustainable development as development that meets current needs without compromising the ability of future generations to meet their own needs. Environmental degradation presents a serious impediment to achieving this goal.

Sustainable development is possible. Western advisors should encourage these countries to halt environmental degradation done in the name of development. The right mix of policies and assistance will promote economic growth while protecting and cleaning up the environment. Much of the current advice and aid to Eastern Europe fails to accomplish either. As Dr. Karolyi Kiss, a leading economist at the Institute for World Economics in Hungary, commented, "[w]hat we would really like is for just one Western country to step forward as a patron saint of sustainable development."

Comment: Frye after Daubert: The Role of Scientists in Admissibility Issues As Seen through Analysis of the DNA Profiling Cases

This Comment argues that the acceptance of a relevant scientific community should be a "necessary precondition to the admissibility of scientific evidence." The Frye standard, in explicitly requiring general acceptance in the appropriate scientific community of both the theory and technique, is superior to the more general, multi-factored Federal Rules of Evidence standards, including the one espoused in Daubert. Moreover, novel scientific evidence should not be admitted unless the methods actually employed by the specific laboratory are routinely capable of giving the result of the generally accepted technique.

Therefore, this paper has two goals: first, to illustrate, through DNA profiling, the role of the scientific community in deciding questions of admissibility of scientific theories or techniques; and second, to argue that the Frye standard, by establishing general acceptance of the scientific theory or technique as an absolute prerequisite for admissibility, is superior to the Federal Rules standards.

This paper is divided into three parts. Part I defines the legal standards for admitting novel scientific evidence into the courtroom. Part II defines the components of the DNA profiling method and identifies those areas in which conflict has developed. Part III presents arguments for the use of the Frye standard.

The National Stolen Property Act and Computer Files: A New Form of Property, a New Form of Theft

Section 2314 of the National Stolen Property Act ("NSPA") imposes a fine and a jail sentence on any person who "transports, transmits, or transfers in interstate or foreign commerce any goods, wares, merchandise, securities or money, of the value of $5,000 or more, knowing the same to have been stolen, converted or taken by fraud." In Dowling v. United States, the Supreme Court held that the Act's "stolen, converted or taken by fraud" language did not extend to a case of pure copyright infringement. Although ostensibly a case about whether copyright infringement is equivalent to stealing, converting or taking by fraud, the opinion contains hints that the NSPA does not apply at all to the taking of purely intangible property.

What happens to a person who uses his computer to connect to another person's computer without permission through the use of a modem and instructs that person's computer to download a confidential file? Like pure copyright infringement, there is not the kind of "physical" taking involved that there would be were the person to break into the victim's home and steal data disks. However, unlike pure copyright infringement, an uninvited intrusion into the victim's privacy occurs, albeit through the use of analog signals over the phone lines.

Lower courts confronting this problem have read Dowling in two conflicting ways. One side considers Dowling a case about tangibility and holds that for a person's misconduct to fall under the NSPA, he must take a "physical thing" from someone else and transport that thing across state lines. The other side reads Dowling as a case about copyrights, holding that copyright infringement is better left to the copyright laws than to statutes dealing with stolen property.

This Comment argues that the latter view is preferable. The Dowling opinion stresses the existence of another federal statutory scheme--the copyright laws--that covers cases of pure copyright infringement. The opinion argues that the existence of such a scheme evidences an intent to deal with copyrights exclusively through that scheme. While courts have generally been reluctant to recognize complex forms of property, a great deal of case law interpreting the NSPA extends its coverage well beyond the realm of purely physical property. To read into the NSPA the requirement of physical tangibility creates incongruities in its application with some absurd results. To read the NSPA to cover theft via modem fits with the purposes of the Act. More importantly, reading the NSPA to cover computer files provides a foundation for preserving basic property rights at a time when society is on the verge of abandoning paper as a medium of storage.

Part I of this Comment outlines the Dowling decision and the lower court decisions confronting theft over the phone lines. Part II addresses the arguments of the lower courts interpreting Dowling as applied to theft of computer files and concludes that Dowling is more properly read as a case about copyrights, not a case about tangibility. Part III argues that the purpose of the NSPA is consistent with that reading of Dowling and that recognition of property rights in computer files will be essential to preserving the current status of property rights that courts recognize in information. Finally, Part IV applies the NSPA to a hypothetical case of theft via modem and addresses the question of valuation.

Comment: "Eureka! But I filed too late . . .": The Harm/Benefit Dichotomy of a First-to-File Patent System

This Comment explores the potential harms and benefits that may arise from choosing a first-to-file priority system over a first-to-invent system for rewarding patent rights to inventors. Section I provides a framework for this discussion by examining labor based theories that can be used to support a natural rights argument for intellectual property. Section II examines the harms and benefits implicated by the first-to-invent and first-to-file systems. Depending on the baseline chosen, the first-to-invent system appears to confer the greatest benefit to a first-inventor. In the same vein, the first-to-invent system seemingly causes the greatest harm to all other inventors. The first-to-file system, however, gives moderate benefit to the first inventor to file, and causes moderate harm to all other inventors. Section III proposes another system for rewarding patents, which is loosely modeled on the copyright system and gives the same rights to all inventors. Under this system, all inventors receive a moderate benefit and avoid the harm prevalent in the other two systems. The Comment concludes that both the economic and moral reasons for preferring the current first-to-invent system prevail, and therefore the current system for awarding patents should not be changed. Moreover, the first-to-invent system appears consistent with the common law preference for avoiding harm and provide superior incentives to inventors--incentives that policy makers credit for the success of the American patent system.

Comment: Child-Centered Child Care: An Argument for a Class Integrated Approach

In sum, I contend that an infrastructural approach to universal child care provision is not only functionally mandated by the dramatic changes in our society's profile, but might also prove a powerful agent in healing race and class divisions as well as a means of enriching our children. To effectively implement such a system, we must reframe current notions of daycare as a tacked-on response to particular economic or employment circumstances. Instead, our approach to child care should be child-centered; that is, first and foremost a response to children, with their care and advantaged upbringing its primary concern. Such a system must be universally available and, while carefully tailored to embrace the needs of the poor, must be as structurally independent of welfare delivery systems as is administratively possible.

With this project on the table, I will begin by describing three broad and well-documented aspects of modern social and economic transformation: the feminization of poverty, the growing number of single mother families, and the increasing participation of women in the workplace. While all three of these phenomena interrelate, the first two are particularly inextricable, and for that reason they are presented under one heading. I will then briefly canvass the impact of these trends on the growing need for child care, a need which cuts across the entire economic spectrum of society. Beginning with a historical survey, the next section will sketch out our current approach to daycare provision, evincing the fragmented and stratified nature of that approach and the confusion and waste of resources it generates. This sketch will also show that our most recent efforts to address the growing need for daycare tend increasingly to segregate daycare provision along economic class-and, consequently, race-lines while needlessly burdening general welfare programs. I will argue that this is wrongheaded and serves only to increase unwarranted fragmentation and cost, both social and otherwise. At this juncture, in order to illuminate context and gain perspective, I will examine the approaches to daycare taken in Sweden and France, countries with especially well-developed family support systems. In closing, I will contend that the concurrence and broad scope of the social transformations described in the first section of the paper present an opportunity for a dramatic change in our approach to child care, an opportunity that both necessitates and is ripe for the implementation of the type of universal daycare system alluded to above. I will also highlight those aspects of family support offered in France and Sweden that might prove useful as models here, while rating the particular demographic and social concerns of this country that suggest a different approach may be warranted.