Law Commons^™

No Outsourcing Of Law? Wto Law As Practiced By Wto Courts, Petros C. Mavroidis

Faculty Scholarship

This article provides a critical assessment of the corpus of law that the adjudicating bodies of the World Trade Organization (WTO) – the Appellate Body (AB) and panels – have used since the organization was established on January 1, 1995. After presenting a taxonomy of WTO law, I move to discern, and to provide a critical assessment of, the philosophy of the WTO adjudicating bodies, when called to interpret it. In discussing the law that WTO adjudicating bodies have used, I distinguish between sources of WTO law and interpretative elements. This distinction will be explicated in part I below. Part …

"They Say I Am Not An American…": The Noncitizen National And The Law Of American Empire, Christina Duffy Ponsa-Kraus

Faculty Scholarship

The American papers sometimes contain tales about persons who have forgotten who they are, what are their names, and where they live. The Porto [sic] Ricans find themselves in the same predicament as those absent-minded people. To what nationality do they belong? What is the character of their citizenship? ... [l]f since they ceased to be Spanish citizens they have not been Americans [sic] citizens, what in the name ·of heaven have they been?

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 …

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 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 …

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 …

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 …

Just One Click: The Reality Of Internet Retail Contracting, Ronald J. Mann, Travis Siebeneicher

Faculty Scholarship

This Essay explores the enforceability and presence of pro-seller contract terms in internet retail contracts. Analyzing case law on internet contract enforceability and a survey of 500 firms'websites, it demonstrates that even the enforceability of many internet contracts is questionable. It then presents new data that suggest that the prevalence of pro-seller contract terms is far less than usually assumed. It suggests that the benefit of making these terms enforceable is outweighed by the loss of user friendliness required for the necessary interface changes. Finally, it uses fresh statistical analyses to determine what relationship, if any, exists between enforceability, pro-seller …

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 …

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 …

Land Assembly Districts, Michael A. Heller, Rick Hills

Faculty Scholarship

Eminent domain for economic development is both attractive and appalling. States need the power to condemn because so much land in America is inefficiently fragmented. But public land assembly provokes hostility because vulnerable communities get bulldozed. Courts offer no help. The academic literature is a muddle. Is it possible to assemble land without harming the poor and powerless? Yes. This Article proposes the creation of Land Assembly Districts, or "LADs." This new property form solves the age-old tensions in eminent domain and shows, more generally, how careful redesign of property rights can enhance both welfare and fairness. The economic and …

Mccain Vs. Obama On Environment, Energy, And Resources, Michael B. Gerrard

Faculty Scholarship

For the first time in living memory, the environment is receiving significant attention in a presidential election. Both Senator John McCain (R-AZ) and Senator Barack Obama (D-IL) have given speeches and run television advertisements on the issue and (after a slow start) are being asked questions by the national press about where they stand on climate change and energy.

This article compares the actions and positions of the two candidates on environmental, energy, and resources issues. It begins by looking at their voting records, presents their endorsements and campaign contributions, and then discusses their positions as shown in their campaign …

Making Sense Of Nation-Level Bankruptcy Filing Rates, Ronald J. Mann

Faculty Scholarship

Increased rates of consumer bankruptcy filings are a policy concern around the world. It is not easy, however, to explain the variations in per capita filing rates from country to country. Some of the variation is attributable to different levels of indebtedness. Some is attributable to different cultural attitudes about financial failure. And some is attributable to the accessibility of the legal system as a remedy for irremediable financial distress.

This paper analyzes the differences in nation-level, per capita filing rates. I start with a model that uses economic variables to explain nation-level variations in filing rates. The economic and …

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 …

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 …

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.

Wrtl Ii: The Sharpest Turn In Campaign Finance's Long And Winding Road, Richard Briffault

Faculty Scholarship

In Federal Election Commission v. Wisconsin Right to Life, Inc. (WRTL II), a closely divided and fragmented Supreme Court, without a majority opinion, held that the First Amendment requires the creation of a sweeping as-applied exception to § 203 of the Bipartisan Campaign Reform Act of 2002 (BCRA), which extended the ban on the use of corporate and union treasury funds in federal election campaigns to “electioneering communication.” In so doing, the Court broke sharply with its 2003 decision in McConnell v. Federal Election Commission, which had, inter alia, rejected a facial challenge to the …