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Kernochan Center News - Fall 2005, Kernochan Center For Law, Media And The Arts

Kernochan Center for Law, Media, and the Arts

No abstract provided.

Pay For Short-Term Performance: Executive Compensation In Speculative Markets, Patrick Bolton, José Scheinkman, Wei Xiong

Center for Contract and Economic Organization

We argue that the root cause behind the recent corporate scandals associated with CEO pay is the technology bubble of the latter half of the 1990s. Far from rejecting the optimal incentive contracting theory of executive compensation, the recent evidence on executive pay can be reconciled with classical agency theory once one expands the framework to allow for speculative stock markets.

Redesigning The International Lender Of Last Resort, Patrick Bolton, David A. Skeel Jr.

Center for Contract and Economic Organization

This paper is concerned with the issue of how to balance bailouts (or "lending into arrears") with debt reductions (or "private sector involvement") in the resolution of sovereign debt crises. It provides a review of recent proposals for improving the sovereign debt restructuring process. In addition to defending a sovereign bankruptcy proposal we have put forward in recent work, this article proposes a major reorientation of the IMF's role in sovereign debt crises.

A Freedom-Promoting Approach To Property: A Renewed Tradition For New Debates, Jedediah S. Purdy

Faculty Scholarship

This should be a heady time for theorists and practitioners of property law. Some of the most important recent proposals to improve human wellbeing rest on the expansion or reform of property rights. From Peru, the political economist Hernando de Soto recently captured the world's attention by contending that a lack of property rights stands between the slum dwellers of the world's poor countries and new horizons of prosperity. Nearer home, Yale economist Robert Shiller has proposed a new market in risk, essentially propertizing present expectations of good fortune, which would represent one of the most dramatic expansions in the …

Celebrating Stanley Lubman, Benjamin L. Liebman, R. Randle Edwards

Faculty Scholarship

On April 15, 2005 more than sixty scholars from China, North America, and Europe gathered at Columbia Law School for a conference in honor of Stanley Lubman. The conference celebrated Stanley's seventieth year-and more importantly, his tremendous contribution to the field of Chinese legal studies. This special edition of the Columbia Journal of Asian Law includes a selection from the twenty papers presented at the conference.

Kernochan Center News - Winter 2005, Kernochan Center For Law, Media And The Arts

Kernochan Center for Law, Media, and the Arts

No abstract provided.

The Author's Name As A Trademark: A Perverse Perspective On The Moral Right Of "Paternity"?, Jane C. Ginsburg

Faculty Scholarship

The US. Supreme Court in its 2003 decision in Dastar v. Twentieth Century Fox, construing the Lanham Federal Trademarks Act, deprived authors of their principal legal means to enforce attribution rights in the US. I have elsewhere criticized the Dastar Court's analysis, and have urged amending the Copyright Act to provide express recognition of the attribution right. This time, however, I propose to reconsider the foundation for the attribution right; I draw on literary and historical sources to supplement legal arguments concerning the meaning of the author's name. I will suggest that, contrary to the usual characterization of this …

Facial Challenges And Federalism, Gillian E. Metzger

Faculty Scholarship

This Essay addresses the question of whether challenges to legislation as exceeding Congress' powers should be assessed on a facial or an as-applied basis, a question that rose to the fore in the Supreme Court's recent decision in Tennessee v. Lane. The Essay begins by arguing that what distinguishes a facial challenge is that it involves an attack on some general rule embodied in the statute. Such challenges can take a broader or narrower form, and thus the terms 'facial" and "as-applied" are best understood as encompassing a range of possible challenges rather than as mutually exclusive terms. The …

In The Shadow Of Delaware - The Rise Of Hostile Takeovers In Japan, Curtis J. Milhaupt

Faculty Scholarship

Despite longstanding predictions to the contrary, hostile takeovers have arrived in Japan. This Essay explains why and explores the implications of this phenomenon, not only for Japanese corporate governance, but also for our understanding of corporate law development around the world today. Delaware law figures prominently in the recent Japanese events. A highprofile battle for corporate control has just generated a judicial standard for takeover defenses that might be called a Unocal rule with Japanese characteristics. Meanwhile, ministy-endorsed takeover guidelines have been formulated that are heavily influenced by the familiar "threat" and "proportionality" tests under Delaware law, along with many …

Causation By Presumption? Why The Supreme Court Should Reject Phantom Losses And Reverse Broudo, John C. Coffee Jr.

Faculty Scholarship

Over a quarter of a century ago, Judge Henry Friendly coined the term "fraud by hindsight" in upholding the dismissal of a proposed securities class action. As he explained, it was too simple to look backward with full knowledge of actual events and allege what should have been earlier disclosed by a public corporation in its Security and Exchange Commission (SEC) filings. Because hindsight has twenty/twenty vision, plaintiffs could not fairly "seize [] upon disclosures" in later reports, he ruled, to show what defendants should have disclosed earlier.

Today, a parallel concept – "causation by presumption" – is before the …

Common Interest Developments At The Crossroads Of Legal Theory, Michael A. Heller

Faculty Scholarship

What makes common interest developments (CIDs) interesting for legal theory? In my view, CIDs should provoke our interest because they operate at the intersection of two axes of contemporary legal scholarship. The first axis concerns rights allocation, what I have called the spectrum from commons to anticommons property. The second axis concerns governance institutions, which can occupy the space between private and public. These two dimensions define the theoretical field within which we create new forms of group property, and through which we solve emerging collective action dilemmas. CIDs are located at this crossroads, delicately poised between extremes on both …

Introduction By George A. Bermann, George A. Bermann

Faculty Scholarship

The accountability of states and state actors on the international scene is on a forward march. The fora in which this development is playing itself out are multiple: national courts of the state actor, national courts of other states, international tribunals of a more or less public law variety, private international law tribunals, and all manner of hybrids.

Adversary Proceedings In Bankruptcy: A Sideshow, Douglas G. Baird, Edward R. Morrison

Faculty Scholarship

Across a broad range of cases, the civil trial is disappearing. In the early 1960s, about twelve percent of federal civil cases were resolved by trial; by 2002 that percentage had fallen to less than two percent. This sharp decline raises important questions about the quality y and costs of decisionmaking in federal district courts. After all, these courts exist to resolve cases and controversies. It matters whether (and why) these disputes are resolved in or outside the courtroom.

Marc Galanter and Elizabeth Warren suggest that the same thing is happening in the bankruptcy courts and that there is likewise …

Untied States: American Expansion And Territorial Deannexation, Christina Duffy Ponsa-Kraus

Faculty Scholarship

At the beginning of the twentieth century the United States laid claim to an overseas empire, consolidating its victory in the Spanish-American War by adopting novel structures of colonial rule over a brace of newly acquired island territories. A set of Supreme Court decisions known collectively as the Insular Cases established the legal authorization for this undertaking. As the traditional story goes, they did so by holding that the U.S. Constitution did not "follow the flag" to the recently annexed possessions in the Pacific Ocean and the Caribbean Sea: thus unfettered, an ambitiously imperial nation could attend to the business …

Executive Compensation: If There's A Problem, What's The Remedy? The Case For "Compensation Discussion And Analysis", Jeffrey N. Gordon

Faculty Scholarship

High levels of executive compensation have triggered an intense debate over whether compensation results primarily from competitive pressures in the market for managerial services or from managerial overreaching. Professors Lucian Bebchuk and Jesse Fried have advanced the debate with their recent book, Pay Without Performance: The Unfulfilled Promise of Executive Compensation, which forcefully argues that current compensation levels are best explained by managerial rent-seeking, not by arm's-length bargaining designed to create the optimum pay and performance nexus. This paper expresses three sorts of reservations with their analysis and advances its own proposals. First, enhancing shareholder welfare is not, as a …

Marine-Salvage Law And Marine-Peril-Related Policy: A Second-Best And Third-Best Economic-Efficiency Analysis Of The Problem, The Law, And The Classic Landes And Posner Study, Richard S. Markovits

Faculty Scholarship

This Article (1) delineates the different kinds of allocative costs that marine-peril contingencies can generate and the different kinds of marine-peril-related decisions that can generate allocative inefficiency (marine-salvage-operation investment decisions; decisions about whether to offer to attempt or to actually attempt marine rescues; decisions about the character of the marine-rescue attempts that are made; decisions by potential rescuees to accept or reject offers of marine-rescue attempts; and decisions by potential rescuees to make or reject various marine-peril-avoidance moves); (2) defines the formal meaning of "the most-allocatively-efficient response a State can make to marine-peril contingencies;" (3) explains why, standing alone, judge-prescribed …

The Ethics Of Empire, Again, Jedediah S. Purdy

Faculty Scholarship

Noah Feldman has emerged as one of the most serious and thoughtful contributors to U.S. strategy in the age of terrorism and counterterrorism. Professor Feldman spent a good chunk of 2003 in Baghdad as a constitutional advisor to the Iraqi Governing Council, which was established under the occupation government of Ambassador Paul Bremer. Since then, Feldman has become an important commentator on U.S. policy in Iraq. Many young political operatives cycled through Iraq in 2003 and 2004, but Feldman was unusually well qualified for his position. He holds a degree in Islamic thought, speaks fluent Arabic, and specializes in the …

Seeing Crime And Punishment Through A Sociological Lens: Contributions, Practices, And The Future, Calvin Morill, John Hagan, Bernard E. Harcourt, Tracey L. Meares

Faculty Scholarship

There is a rich intellectual history to the sociological study of crime and punishment that encompasses multiple and interrelated traditions. Some of these traditions trace their roots to the European social theorists of the nineteenth century, particularly Emile Durkheim, Max Weber, and Karl Marx. Although only Durkheim and Weber systematically studied law (and only Durkheim actually studied punishment), all three social theorists facilitated the development of sociological research and theory on crime and punishment. Durkheim's Suicide: A Study in Sociology for example, investigated the relationship between social integration and suicide rates, which, in turn, provided a model of inquiry for …

How Law Affects Lending, Rainer F.H. Haselmann, Katharina Pistor, Vikrant Vig

Faculty Scholarship

The paper explores how legal change affects lending behavior of banks in twelve transition economies of Central and Eastern Europe. In contrast to previous studies, we use bank level rather than aggregate data, which allows us to control for country level heterogeneity and analyze the effect of legal change on different types of lenders. Using a differences-in-differences methodology to analyze the within country variation of changes in creditor rights protection, we find that the credit supplied by banks increases subsequent to legal change. Further, we show that collateral law matters more for credit market development than bankruptcy law. We also …

Allan Farnsworth, Ali Reporter, Lance Liebman

Faculty Scholarship

For my five years as Dean of Columbia Law School, I only occasion-ally worked with Professor Farnsworth. He was not a faculty member who needed the Dean's help or wanted the Dean's attention. But once he came to my office, a mischievous twinkle in his eye, to share the news that on that day, the recorded number of citations to Farnsworth on Contracts had moved into first place among all legal publications, displacing Williston.

Takeovers In The Boardroom: Burke Versus Schumpeter, Ronald J. Gilson, Reinier Kraakman

Faculty Scholarship

We are delighted to participate in a 25th anniversary assessment of Martin Lipton's 1979 article, Takeover Bids in the Target's Boardroom. This is a remarkably prescient article that demonstrates an uncanny ear for an emerging issue. From his vantage point inside targets' boardrooms – and, we assume, also from inside the nearby offices of investment bankers – Lipton spotted a gathering storm on the horizon and sought to channel the emerging issue of takeover policy in a direction that accorded with his own fundamental convictions as well as the interests of his clients. As every academic knows, early intervention …

Agora: Icj Advisory Opinion On Construction Of A Wall In The Occupied Palestinian Territory: Editors' Introduction, Lori Fisler Damrosch, Bernard H. Oxman

Faculty Scholarship

Only rarely does an international judicial opinion attract attention on the front pages of newspapers around the world, and spur activism-or condemnation-from diverse segments of global civil society. The advisory opinion of the International Court of Justice Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory is such a case. As the Court recognized in addressing the question put to it by the United Nations General Assembly, the choice of the term "wall" to designate the subject matter of the proceeding already opens up an area of debate, since not all of the contested structure is …

Holmes And The Marketplace Of Ideas, Vincent A. Blasi

Faculty Scholarship

At least five basic values might be served by a robust free speech principle: (1) individual autonomy; (2) truth seeking; (3) self-government; (4) the checking of abuses of power; (5) the promotion of good character. Free speech might serve one or more of these values by functioning in at least three different ways: (1) as a privileged activity; (2) as a social mechanism; (3) as a cultural force. My contention is that the conventional understanding of the most familiar metaphor in the First Amendment lexicon, the "marketplace of ideas," has had the undesirable effect of focusing attention too much on …

An Idea Whose Time Has Come – But Where Will It Go, Jane C. Ginsburg

Faculty Scholarship

This Reply picks up where Professor Miller's bold proposal leaves off: with the private international law and international copyright implications of state common law protection for idea-submitters. We will first address the compatibility of the proposal with international copyright norms disqualifying ideas from copyright protection. We will then turn to the consequences of the proposal for a federal system. Professor Miller's article thoroughly examines one aspect of the federalism problem, that of federal copyright policy preemption of statebased idea protection. But in advocating a regime constricted to the fifty separate states, not all of whose courts choose to secure idea …

Medellin V. Dretke: Federalism And International Law, Curtis Bradley, Lori Fisler Damrosch, Martin Flaherty

Faculty Scholarship

This evening, we're going to have, at the very least, a discussion which may blossom into a debate-we will see as the evening progresses. However one characterizes the event, we're here to discuss the Medellin v. Dretke case and, more broadly, we are going to be discussing cutting edge issues of international law, including the operation of self-executing treaties and state legal systems, the weight to be given to judgments of international courts interpreting such treaties, and the duties of state and federal judiciaries in this process, all in the context of death penalty cases. Let me give you a …

Imagining Lesbian Legal Theory, Kendall Thomas

Faculty Scholarship

It’s great to be here for this particular occasion to honor the work of Ruthann Robson, from whom I have, over the course of many years, learned so much.

First, I’ve learned from her the critical importance of doing work that is based on and reflects a set of political and ethical commitments to people who live under regimes of domination and inequality. Her scholarship, to me, is a model of engaged adversary scholarship. She has never fallen into the trap, so common to those of us who are professionalized in the legal academy, of thinking that this work does …

Child Custody, Religious Practices, And Conscience, Kent Greenawalt

Faculty Scholarship

This article asks to what extent considerations relating to religion should figure in custody disputes. One inquiry is whether the kind of religious life that a parent plans for his or her child should figure in the decision whether to grant custody to that parent. The article focuses on a religious life that involves very substantial deprivation no after-school activities, no television, no pets, no reading except schoolwork and the Bible-from an ordinary secular perspective. A second inquiry is whether one parent of a divorced couple should be able to prevent the other parent from exposing a child to various …

Incomplete Contracts And The Theory Of Contract Design, Robert E. Scott, George G. Triantis

Faculty Scholarship

We are delighted to accept this invitation to write a short essay on the economic theory of incomplete contracts and to illuminate its current and potential impact on the legal analysis of contracts and contract law. Economic contract theory has made significant inroads in legal scholarship over the past fifteen years, and this is a good time to take stock of its strengths and weaknesses. Several recent publications in the Yale Law Journal have offered evaluations of the contributions of contract theory.' In this essay, we offer our opinion as to its future path in legal scholarship. In particular, we …

The Law And The Non-Law, Katharina Pistor

Faculty Scholarship

The common theme of the articles assembled for this issue is a focus on Asian societies and their struggle with the conceptualization of "non-law" and its relation to law. This brief Comment reflects on the construction of the "non-law" as analytical categories in the four contributions. It suggests that the struggle with "non-law" reflects a deeper confusion about the role of law in ordering social relations broadly defined.' Focusing on the "non-law" assumes implicitly that "law" is a useful and well-delineated category for analyzing governance structures within and across states and thus can serve as a benchmark for analyzing "non-law." …

Medical Error Disclosure, Mediation Skills, And Malpractice Litigation: A Demonstration Project In Pennsylvania, Carol B. Liebman, Chris Stern Hyman

Faculty Scholarship

In the past decade, the cost of medical malpractice insurance has skyrocketed in Pennsylvania. Physicians in high-risk specialties are reported to have moved out of the state, closed their practices, or retired, particularly in eastern Pennsylvania. Liability insurance companies have pulled out of the state. At the same time, serious medical errors continue to occur. Doctors and hospital officials, afraid of lawsuits and loss of insurance coverage, often stonewall patients and relatives, offering only barebones explanations of serious medical errors. Research shows this situation creates a vicious circle in which frustration, anger, and a search for information often motivate patients …