Law Commons^™

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 …

Legitimacy And Cooperation: Why Do People Help The Police Fight Crime In Their Communities?, Tom R. Tyler, Jeffery Fagan

Faculty Scholarship

Past research indicates that legitimacy encourages compliance with the law. This study extends consideration of the influence of legitimacy by exploring its impact on cooperation with the police and with neighbors to combat crime in one's community. It uses a panel study design and focuses upon the residents of New York City. The study finds that legitimacy shapes cooperation with the police and has a lesser influence on cooperation with others in the community. Consistent with the findings of prior research, legitimacy itself is found to be linked to the justice of the procedures used by the police to exercise …

Overseers Or "The Deciders" – The Courts In Administrative Law, Peter L. Strauss

Faculty Scholarship

For the second time in a short period, Professors Miles and Sunstein have brought powerful tools of statistical analysis and diligent coding of circuit court of appeals opinions together to demonstrate what the Realists long ago taught us to suspect, that significant elements of judging can be explained in terms of the jurist's political world view – that the tension between law and politics is alive in judicial work as elsewhere and that it is only an aspiration to seek a world of laws and not of men. Elements of their work, though, appear as if in criticism of contemporary …

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 …

Integrating Accommodation, Elizabeth F. Emens

Faculty Scholarship

Courts and agencies interpreting the Americans with Disabilities Act (ADA) generally assume that workplace accommodations benefit individual employees with disabilities and impose costs on employers and, at times, coworkers. This belief reflects a failure to recognize a key feature of ADA accommodations: their benefits to third parties. Numerous accommodations – from ramps to ergonomic furniture to telecommuting initiatives – can create benefits for coworkers, both disabled and nondisabled, as well as for the growing group of employees with impairments that are not limiting enough to constitute disabilities under the ADA. Much attention has been paid to how the integration of …

Tolerated Use, Tim Wu

Faculty Scholarship

"Tolerated use" is a term that refers to the contemporary spread of technically infringing, but nonetheless tolerated, use of copyrighted works. Such patterns of mass infringement have occurred before in copyright history, though perhaps not on the same scale, and have usually been settled with the use of special laws, called compulsory licensing regimes, more familiar to non-copyright scholars as liability rules. This paper suggests that, in present times, a different and slightly unusual solution to the issue of widespread illegal use is emerging-an "opt-in" system for copyright holders, that is in property terms a rare species of ex post …

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 …

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 …

Litigation & Professional Responsibility: Is Overlawyering Overtaking Democracy?, David M. Schizer

Faculty Scholarship

Welcome everyone. We're going to get started. I'm David Schizer, the Dean of Columbia Law School. I'm here to moderate the panel, and our panel's title is, of course, "Is Overlawyering Overtaking Democracy?"

Now, as the moderator I get to ask questions, and I'm going to start with a question of the audience. My question is, aside from me, how many people here have seen Jerry Seinfeld's new animated movie, Bee Movie? I've a six-year-old daughter, which explains why I did – okay, a couple of people. For the rest of the audience's benefit, I should tell you the …

The Permissible Reach Of National Environmental Policies, Henrik Horn, Petros C. Mavroidis

Faculty Scholarship

Trading nations exchange tariff concessions in the context of trade liberalizing rounds. Tariffs, nonetheless, are not the only instrument affecting the value of a concession. Domestic instruments affect it as well, but public order is not negotiable, and, consequently, is not scheduled. Public order is unilaterally defined, but must respect the default rules concerning allocation of jurisdiction which are common to all WTO Members and bind them by virtue of their appurtenance to the international community. In this paper, we focus on the interaction between trade and environment. The purpose of this study is to highlight how these rules and …

Letting Guidelines Be Guidelines (And Judges Be Judges), Gerard E. Lynch

Faculty Scholarship

In a prescient New York Times op-ed piece entitled "Let Guidelines be Guidelines," written in response to the Supreme Court's decision in Blakely v. Washington, before certiorari was granted in United States v. Booker, Bill Stuntz of Harvard and Kate Stith Cabranes of Yale urged that the best solution for the constitutional crisis facing the United States Sentencing Guidelines would be to treat the Guidelines as guidelines, and not as a straightjacket. The Supreme Court evidently took a similar view, deciding in Booker that the Guidelines were constitutional only to the extent that they were not mandatory. The recent follow-up …

Kernochan Center News - Spring 2008, Kernochan Center For Law, Media And The Arts

Kernochan Center for Law, Media, and the Arts

No abstract provided.

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 …

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 …

Introduction: The Challenge Of Lionel Tate, Elizabeth S. Scott, Laurence Steinberg

Faculty Scholarship

Legal reforms over the past generation have transformed juvenile crime regulation from a system that viewed most youth crime as the product of immaturity into one that is ready to hold many youths to the standard of accountability imposed on adults. Supporters of these reforms argue that they are simply a response to the inability of the traditional juvenile court to deal adequately with violent youth crime, but the legal changes that have transformed the system have often been undertaken in an atmosphere of moral panic, with little deliberation about consequences and costs.

In this book we argue that a …

Sovereign Wealth Funds And Corporate Governance: A Minimalist Response To The New Mercantilism, Ronald J. Gilson, Curtis J. Milhaupt

Faculty Scholarship

Keynes taught years ago that international cash flows are always political. Western response to the enormous increase in the number and the assets of sovereign wealth funds (SWFs), and other government-directed investment vehicles that often get lumped together under the SWF label, proves Keynes right. To their most severe critics, SWFs are a threat to the sovereignty of the nations in whose corporations they invest. The heat of the metaphors matches the volume of the complaints. The nations whose corporations are targets of investments are said to be threatened with becoming "sharecropper" states if ownership of industry moves to foreign-government …

Reputational Sanctions In China's Securities Market, Benjamin L. Liebman, Curtis J. Milhaupt

Faculty Scholarship

Literature suggests two distinct paths to stock market development: an approach based on legal protections for investors, and an approach based on self-regulation of listed companies by stock exchanges. This Essay traces China's attempts to pursue both approaches, while focusing primarily on the role of the stock exchanges as regulators. Specifically, the Essay examines a fascinating but unstudied aspect of Chinese securities regulation – public criticism of listed companies by the Shanghai and Shenzhen exchanges. Based on both event study methodology and extensive interviews of market actors, we find that the public criticisms have significant effects on listed companies and …

Punishment, Deterrence And Social Control: The Paradox Of Punishment In Minority Communities, Jeffery Fagan, Tracey L. Meares

Faculty Scholarship

Since the early 1970s, the number of individuals in jails and state and federal prisons has grown exponentially. Today, nearly two million people are currently incarcerated in state and federal prisons and local jails. The growth of imprisonment has been borne disproportionately by. African-American and Hispanic men from poor communities in urban areas. Rising.incarceration should have greatly reduced the crime rate. After all, incapacitated offenders were no longer free to rob, assault, steal, or commit other crimes. However, no large-scale reduction in crime was detected until the mid-1990s. The failure of crime rates to decline commensurately with increases in the …

From Langdell To Law And Economics: Two Conceptions Of Stare Decisis In Contract Law And Theory, Jody S. Kraus

Faculty Scholarship

In his classic monograph, The Death of Contract, Grant Gilmore argued that Christopher Columbus Langdell, Oliver Wendell Holmes, and Samuel Williston trumped up the legal credentials for their classical bargain theory of contract law. Gilmore's analysis has been subjected to extensive criticism, but its specific, sustained, and fundamental charge that the bargain theory was based on a fraudulent misrepresentation of precedential authority has never been questioned. In this Essay, I argue that Gilmore's case against the classical theorists rests on the suppressed premise that the precedential authority of cases resides in the express judicial reasoning used to decide them. In …

Experimental Law And Economics, Jennifer Arlen, Eric L. Talley

Faculty Scholarship

This chapter provides a framework for assessing the contributions of experiments in Law and Economics. We identify criteria for determining the validity of an experiment and find that these criteria depend upon both the purpose of the experiment and the theory of behavior implicated by the experiment. While all experiments must satisfy the standard experimental desiderata of control, falsifiability of theory, internal consistency, external consistency and replicability, the question of whether an experiment also must be contextually attentive - in the sense of matching the real world choice being studied - depends on the underlying theory of decision-making being tested …

Separating The Sony Sheep From The Grokster Goats: Reckoning The Future Business Plans Of Copyright-Dependent Technology Entrepeneurs, Jane C. Ginsburg

Faculty Scholarship

In MGM v. Grokster, the U.S. Supreme Court established that businesses built from the start on inducing copyright infringement will be held liable, as judges will frown on drawing one's start-up capital from other people's copyrights. The Court's elucidation of the elements of inducement suggests that even businesses not initially built on infringement, but in which infringement comes to play an increasingly profitable part, may find themselves liable unless they take good faith measures to forestall infringements. This Article addresses the evolution of the U.S. judge-made rules of secondary liability for copyright infringement, and the possible emergence of an obligation …

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 …

Lobbying And Campaign Finance: Separate And Together, Richard Briffault

Faculty Scholarship

The relationship between lobbying and campaign finance is complex, contested, and changing. Lobbying and campaign finance are two important forms of political activity that combine money and communication in ways that have significant implications for democratic self-government. The two practices frequently interact and reinforce each other, with individuals, organizations, and interest groups deploying both lobbyists and campaign money to advance their goals. Congress, in 2007, for the first time explicitly recognized the intersection of campaign finance and lobbying when it adopted legislation specifically regulating the campaign finance activities of lobbyists. At roughly the same time, several of the leading candidates …

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 …

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 …

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 …

Patterns Of Credit Card Use Among Low And Moderate Income Households, Ronald J. Mann

Faculty Scholarship

This chapter uses data from the Federal Reserve Board's Survey of Consumer Finances for 2004 (the "SCF") to examine the penetration of credit cards into LMI markets. The chapter has two purposes. First, I discuss the rise of the modern credit market, emphasizing the segmentation of product lines based on behavioral and financial characteristics of customer groups. Among other things, that trend involves the use of products aimed at LMI households that differ significantly from those aimed at middle-class households. Second, I describe the extent to which LMI households borrow on credit cards, the types of LMI households that borrow, …

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 – …

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 …

Introduction To Sandra Day O'Connor, George A. Bermann

Faculty Scholarship

There are many, many reasons to honor Justice Sandra Day O'Connor-and during the course of her brief but rich stay with us here at Columbia Law School, we have touched on only some of those many reasons. There remains this afternoon one more occasion to honor Justice O'Connor-an honor that has a very special resonance at this law school. It is the conferral of the Wolfgang Friedmann Memorial Award by the Columbia Journal of Transnational Law, a recognition of contributions to international law that is deeply meaningful not only at Columbia Law School, but in international law circles generally.