Digital Commons Network^™

Learning From Difference: The New Architecture Of Experimentalist Governance In The Eu, Charles F. Sabel, Jonathan Zeitlin

Faculty Scholarship

This article argues that current widespread characterisations of EU governance as multi-level and networked overlook the emergent architecture of the EU's public rule making. In this architecture, framework goals (such as full employment, social inclusion, good water status, a unified energy grid) and measures for gauging their achievement are established by joint action of the Member States and EU institutions. Lower-level units (such as national ministries or regulatory authorities and the actors with whom they collaborate) are given the freedom to advance these ends as they see fit. But in return for this autonomy, they must report regularly on their …

Accountability And Competition In Securities Class Actions: Why "Exit" Works Better Than "Voice", John C. Coffee Jr.

Faculty Scholarship

A sizable literature on class actions has long suggested that the plaintiff’s attorney is an independent entrepreneur over whom the class members have only limited control. But the analysis cannot stop here. Why does this state of affairs exist? This essay will give two connected answers to this question as a prelude to evaluating what reforms are likely to work:

(1) The rules of "litigation governance" differ diametrically from those of corporate governance. An entrepreneur seeking capital for a business venture must convince investors to "opt in" and buy the securities of the entrepreneur's start-up corporation. In contrast, a plaintiffs …

Corn Futures: Consumer Politics, Health, And Climate Change, Jedediah S. Purdy, James Salzman

Faculty Scholarship

The rise of corn has brought great benefits, but its large and growing costs have also become increasingly clear. In this Article, we explore the unprecedented roles of corn in our economy, explain how law and policy have shaped these roles, uncover the environmental and social impacts of corn, and consider how to think of consumption in this context. If voting-by-buying is an increasingly relevant model of consumer engagement, can we envision consumers being presented with choices that address the social and environmental harms from our dependence on corn? More generally, how should we think about consumer engagement, both its …

The Cultural Defense: Reflections In Light Of The Model Penal Code And The Religious Freedom Restoration Act, Kent Greenawalt

Faculty Scholarship

Much of this essay is an inquiry into just how cultural factors might figure in claims about elements of offenses, justifications, excuses, and mitigations under the Model Penal Code – still the most comprehensive and systematic code of criminal law in the United States. That exploration gives us a sense of how culture may matter for criminal liability absent a specifically labeled "cultural defense"; it also provides an idea of how much could be accomplished by expansions of the standard defenses.

In the latter part of the essay, I think about cultural practices as a potential justification or generalized exemption …

Proxy Contests In An Era Of Increasing Shareholder Power: Forget Issuer Proxy Access And Focus On E-Proxy, Jeffrey N. Gordon

Faculty Scholarship

The current debate over shareholder access to the issuer's proxy statement for the purpose of making director nominations is both overstated in its importance and misses the serious issue in question. The Securities and Exchange Commission's ("SEC's") new e- proxy rules, which permit reliance on proxy materials posted on a website, should substantially reduce the production and distribution cost differences between a meaningful contest waged via the issuer's proxy and a freestanding proxy solicitation. No matter which avenue is used, however, the serious question relates to the appropriate disclosure required of a shareholder nominator. Should the nominator be subject to …

Giving The Constitution To The Courts, Jamal Greene

Faculty Scholarship

Judicial supremacy is the new judicial review. From the time Alexander Bickel introduced the term "countermajoritarian difficulty" in 1962 until very recently, justifying judicial authority to strike down legislation in a nation committed to democratic self-government was the central problem of constitutional theory. But many who had satisfied themselves as to the legitimacy of judicial review have since taken up the related but distinct question of whether, though legitimate, constitutional interpretation should be the exclusive province of the judiciary. That is, is it ever appropriate to locate constitutional interpretive authority outside of constitutional courts, whether within the coordinate branches of …

Are We Over-Lawyering International Affairs, Philip C. Bobbitt, John D. Hutson, John C. Yoo, Philip D. Zelikow, Edwin D. Williamson

Faculty Scholarship

This panel will discuss the role of lawyers — particularly government lawyers — in addressing questions of legal policy. We will discuss fundamental questions such as: Should lawyers decide legal policy? Or, is that best left to the policymakers? Should lawyers give advice as to legal policy, or should they stick to providing answers as to what the law is? How should lawyers respond to what a policymaker thinks is the legal question, but is really a question of legal policy? If lawyers find the law vague or lacking, should they fill in the gaps, advising as to what the …

Recent Developments In Us Copyright Law: Part I – "Orphan" Works, Jane C. Ginsburg

Faculty Scholarship

This Comment, after a brief review of the nature of the orphan works problem and prior attempts to resolve it in the US, will analyze the current bills' provisions, both with respect to the limitation of remedies that constitutes the proposals' centerpiece, and to the conditions required to qualify for the limitation. I will also compare the US proposals with current European initiatives, and will assess the compatibility of the US proposals with international treaty norms, as well as the cross-border consequences of inconsistent US and EU orphan works regimes. I will conclude with some suggestions for amending the US …

Recent Developments In Us Copyright Law – Part Ii, Caselaw: Exclusive Rights On The Ebb?, Jane C. Ginsburg

Faculty Scholarship

The 1976 Act announces broad exclusive rights, offset by a myriad of specific exemptions, and one wide exception for "fair use." In words and intent, the exclusive rights are capacious, but new technologies may have caused some of the general phrases to become more constraining than might have been expected from a text whose drafters took pains to make forward-looking. Thus, the scope of the reproduction right turns on the meaning of "copy;" the reach of the distribution right on "distribute copies" and "transfer of ownership;" the range of the public performance right on "public" and "perform." Entrepreneurs and users …

"See Me, Feel Me, Touch Me, Hea[R] Me" (And Maybe Smell And Taste Me, Too): I Am A Trademark – A Us Perspective, Jane C. Ginsburg

Faculty Scholarship

The preceding chapter, “Between a sign and a brand,” addresses the current law in the UK and the EU regarding which signs can be a registered trademark, and the scope of protection a trademark receives. Jennifer Davis also considers the extent to which that scope does or should cover the more ineffable subject matter of “brand values.” This comment from the perspective of United States trademark law will follow a similar plan. It first will address what is (and is not) a trademark, focusing on the extensions of trademarks beyond traditional word marks and design marks (logos; trade dress [get-up]) …

The Metaphysics Of Mind And The Practical Science Of The Law, Sarah Seo, John F. Witt

Faculty Scholarship

In “Mind of a Moral Agent,” Susanna Blumenthal elegantly limns the rise and partial fall of the common sense theory of moral responsibility in American law. As Blumenthal convincingly describes it, the problem for early American jurists was nothing less than to solve the paradox of determinism and free will. How can the law declare someone morally culpable unless we are free to choose our own ends?

After the Revolution, according to Blumenthal’s account, American doctors and jurists turned to a sunny, Scottish Enlightenment theory of moral responsibility. In place of the tortured moral gymnastics of an older generation of …

Missing Parents, Clare Huntington

Faculty Scholarship

In an effort to protect children from abuse and neglect, the child welfare system focuses on parents, both as potential wrongdoers and as the locus for rehabilitation. This attention informs the discourse surrounding state intervention: parents' rights are balanced against children's rights, and family autonomy is understood as an overriding value. But the child welfare system centers parents in the wrong way, leading to academic debates that miss the mark and methods of intervention that are often counterproductive.

An effective child welfare system would be built upon the understanding that, in general, the state can best support children by supporting …

International Standards For Detaining Terrorism Suspects: Moving Beyond The Armed Conflict-Criminal Divide, Monica Hakimi

Faculty Scholarship

Although sometimes described as war, the fight against transnational jihadi groups (referred to for shorthand as the "fight against terrorism") largely takes place away from any recognizable battlefield. Terrorism suspects are captured in houses, on street comers, and at border crossings around the globe. Khalid Shaikh Mohammed, the high-level Qaeda operative who planned the September 11 attacks, was captured by the Pakistani government in a residence in Pakistan. Abu Omar, a radical Muslim imam, was apparently abducted by U.S. and Italian agents off the streets of Milan. And Abu Baker Bashir, the spiritual leader of the Qaeda-affiliated group responsible for …

Family Law Cases As Law Reform Litigation: Unrecognized Parents And The Story Of Alison D. V. Virginia M., Suzanne B. Goldberg

Faculty Scholarship

Although the gap between law and lived experience comes as no surprise to most people, the divergence is especially striking – and disturbing – in the area of family law. Legal training quickly reveals that love is not a foundational element of family law, yet it can still be jarring to find that love has little, if any, bearing on the contours of the legal family. Love, after all, does not account for who can and cannot marry. Nor does the past love of an unmarried couple trigger the protections of divorce should the couple separate.

When children are involved, …

Homes With Tails: What If You Could Own Your Internet Connection?, Tim Wu, Derek Slater

Faculty Scholarship

America's communications infrastructure is stuck at a copper wall. For the vast majority of homes, copper wires remain the principal means of getting broadband services. The deployment of fiber optic connections to the home would enable exponentially faster connections, and few dispute that upgrading to more robust infrastructure is essential to America's economic growth. However, the costs of such an upgrade are daunting for private sector firms and even for governments. These facts add up to a public policy challenge.

Our intuition is that an innovative model holds unrealized promise: household investments in fiber. Consumers may one day purchase and …

Financial Disclosure Of Risks Related To Global Climate Change, Michael B. Gerrard, Christopher Anderson

Faculty Scholarship

Securities and Exchange Commission (SEC) regulations require publicly traded companies to disclose the material impacts of environmental laws on their business. Increasing attention is being paid to the issue of securities disclosure of financial risks and opportunities posed by impending regulation relating to global climate change and by climate change itself.

Global Network Finance: Organizational Hedging In Times Of Uncertainty, Katharina Pistor

Faculty Scholarship

The global financial crisis that began in 2007 revealed a fundamental weakness in the global financial system: Extensive financial interdependence of financial relations unmatched by a governance regime of similar reach. As multinational banks sought to fortify their capital base in the wake of the unfolding crisis, Sovereign wealth Funds (SWFs) and the banks’ home governments have become mutual stakeholders in some of the largest financial intermediaries with global reach. From the multitude of individual transactions has emerged a network of equity ties that spans the globe. These ties bridge institutional practices and governance regimes that previously operated largely independently …

We Are All Entrepreneurs Now, David E. Pozen

Faculty Scholarship

A funny thing happened to the entrepreneur in legal, business, and social science scholarship. She strayed from her capitalist roots, took on more and more functions that have little to do with starting or running a business, and became wildly popular in the process. Nowadays, "social entrepreneurs" tackle civic problems through innovative methods, "policy entrepreneurs" promote new forms of government action, "norm entrepreneurs" seek to change the way society thinks or behaves, and "moral entrepreneurs" try to alter the boundaries of duty or compassion. "Ethnification entrepreneurs," "polarization entrepreneurs," and other newfangled spinoffs pursue more discrete objectives. Entrepreneurial rhetoric has never …

Market Damages, Efficient Contracting, And The Economic Waste Fallacy, Alan Schwartz, Robert E. Scott

Faculty Scholarship

Market damages are the best default rule when parties trade in thick markets: They induce parties to contract efficiently and to trade if and only if trade is efficient, and they do not create ex ante inefficiencies. Courts commonly overlook these virtues, however, when promisors bundle services that are not separately priced. For example, a promisor may agree to pay royalties on a mining lease and later to restore the promisee's property. When the cost of completion is large relative to the "market delta " – the increase in market value – courts concerned with avoiding "economic waste" limit the …

Detention As Targeting: Standards Of Certainty And Detention Of Suspected Terrorists, Matthew C. Waxman

Faculty Scholarship

To the extent that a state can detain terrorists pursuant to the law of war, how certain must the state be in distinguishing suspected terrorists from nonterrorists? This Article shows that the law of war can and should be interpreted or supplemented to account for the exceptional aspects of an indefinite conflict against a transnational terrorist organization by analogizing detention to military targeting and extrapolating from targeting rules. A targeting approach to the detention standard-of-certainty question provides a methodology for balancing security and liberty interests that helps fill a gap in detention law and helps answer important substantive questions left …

Juvenile Crime And Criminal Justice: Resolving Border Disputes, Jeffrey Fagan

Faculty Scholarship

Rising juvenile crime rates during the 1970s and 1980s spurred state legislatures across the country to exclude or transfer a significant share of offenders under the age of eighteen to the jurisdiction of the criminal court, essentially redrawing the boundary between the juvenile and adult justice systems. Jeffrey Fagan examines the legal architecture of the new boundary-drawing regime and how effective it has been in reducing crime.

The juvenile court, Fagan emphasizes, has always had the power to transfer juveniles to the criminal court. Transfer decisions were made individually by judges who weighed the compet­ing interests of public safety and …

Abolition In The U.S.A. By 2050: On Political Capital And Ordinary Acts Of Resistance, Bernard E. Harcourt

Faculty Scholarship

The United States, like the larger international community, likely will tend toward greater abolition of the death penalty during the first half of the twenty-first century. A handful of individual states – states that have historically carried out few or no executions – probably will abolish capital punishment over the next twenty years, which will create political momentum and ultimately a federal constitutional ban on capital punishment in the United States. It is entirely reasonable to expect that, by the mid-twenty-first century, capital punishment will have the same status internationally as torture: an outlier practice, prohibited by international agreements and …

On The Value Of Distributional Equality, Joseph Raz

Faculty Scholarship

The paper returns to the question whether equality in distribution is valuable in itself, or, if you like, whether it is intrinsically valuable. Its bulk is an examination of two familiar arguments against the intrinsic value of distributional equality: the levelling down objection and the objection that equality violates some person-affecting condition, in that its realisation does not improve the lot of people.

On The Guise Of The Good, Joseph Raz

Faculty Scholarship

I will provisionally take the Guise of the Good thesis to consist of three propositions: (1) Intentional actions are actions performed for reasons, as those are seen by the agents. (2) Specifying the intention which makes an action intentional identifies central features of the reason(s) for which the action is performed. (3) Reasons for action are such reasons by being facts which establish that the action has some value. From these it is said to follow that (4) Intentional actions are actions taken in, and because of, a belief that there is some good in them. I will examine reasons …

Relational Tax Planning Under Risk-Based Rules, Alex Raskolnikov

Faculty Scholarship

Risk-based rules are the tax system's primary response to aggressive tax planning. They usually grant benefits only to those taxpayers who accept risk of changes in market prices (market risk) or business opportunities (business risk). Attempts to circumvent these rules by hedging, contractual safeguards, and diversification are well-understood. The same cannot be said about a very different type of tax planning. Instead of reducing risk directly, some taxpayers change the nature of risk. They enter into informal, legally unenforceable agreements with contractual counterparties that are designed to eliminate market or business risk entirely. The new uncertainty these tax planners inevitably …

Legal Accountability In The Service-Based Welfare State: Lessons From Child Welfare Reform, Kathleen G. Noonan, Charles F. Sabel, William H. Simon

Faculty Scholarship

Current trends intensify the longstanding problem of how the rule-of-law should be institutionalized in the welfare state. Welfare programs are being re-designed to increase their capacities to adapt to rapidly changing conditions and to tailor their responses to diverse clienteles. These developments challenge the understanding of legal accountability developed in the Warren Court era. This Article reports on an emerging model of accountable administration that strives to reconcile programmatic flexibility with rule-of-law values. The model has been developed in the reform of state child protective services systems, but it has potentially broad application to public law. It also has novel …

Bankruptcy's Rarity: An Essay On Small Business Bankruptcy In The United States, Edward R. Morrison

Faculty Scholarship

Most nations have enacted statutes governing business liquidation and reorganization. These statutes are the primary focus when policymakers and scholars discuss ways to improve laws governing business failure. This focus is misplaced, at least for distressed small businesses in the United States.

Evidence from a major credit bureau shows that over eighty percent of these businesses liquidate or reorganize without invoking the formal Bankruptcy Code.

The businesses instead invoke procedures derived from the laws of contracts, secured lending, and trusts. These procedures can be cheaper and speedier than a formal bankruptcy filing, but they typically require unanimous consent of senior, …

Remarks Of Gillian E. Metzger, Gillian E. Metzger

Faculty Scholarship

Thanks for having me, I'm glad to be here. I'm going to take for granted the principle that candor and transparency in judicial reasoning is a very good thing. The process of judicial decision making is a process of giving reasoned explanations, of holding up reasons and arguments for refutation. Whether adjudication turns mainly on such reason giving or instead on judicial policy preferences is of course a matter of some dispute, but I think it is relatively noncontentious to say that reason giving is both an important constituent of, and an important constraint on, the process of adjudication – …

The Perils Of Theory, Peter L. Strauss

Faculty Scholarship

As I recall, Professor Clark had more sense than to be my student at Columbia, but I heard a lot about him from admiring colleagues. Clearly he has fulfilled the promise they saw, and this remarkable Symposium is only one indicator of that. The article to which our attention is properly drawn, more than two and a quarter centuries into our nation's history, has an originalist base, tightly and persuasively focused on original understandings of the Supremacy Clause. Professor Clark lays out a cogent account of the Clause's politics and the centrality of its language to the most fundamental of …

The Past, The Present, And Future Of Legal Ethics: Three Comments For David Luban, William H. Simon

Faculty Scholarship

David Luban helped invent the field of legal ethics some years ago; Legal Ethics and Human Dignity provides an opportunity to assess how it has developed. By way of both homage and critique, I offer three comments on central issues that the book raises: the nature of the moral foundations of lawyers' ethics; the relation of legal and ordinary moral norms in legal ethics decisions; and the relation of ethical norms and organization.

I associate the issue of moral foundations with the past because modern academic discussion of legal ethics began with this focus. The relationship between law and morals …