Law Commons^™

Rethinking Article I, Section I: From Nondelegation To Exclusive Delegation, Thomas W. Merrill

Faculty Scholarship

The first substantive clause of the Constitution – providing that "[all legislative Powers herein granted shall be vested in a Congress" – is associated with two postulates about the allocation of legislative power. The first is the nondelegation doctrine, which says that Congress may not delegate legislative power. The second is the exclusive delegation doctrine, which says that only Congress may delegate legislative power. This Article explores the textual, historical, and judicial support for these two readings of Article I, Section 1, as well as the practical consequences of starting from one postulate as opposed to the other. The Article …

Madisonian Equal Protection, James S. Liebman, Brandon L. Garrett

Faculty Scholarship

James Madison is considered the "Father of the Constitution," but his progeny disappointed him. It had no effective defense against self-government's "mortal disease" – the oppression of minorities by local majorities. This Article explores Madison's writings in an effort to reclaim the deep conception of equal protection at the core of his constitutional aspirations. At the Convention, Madison passionately advocated a radical structural approach to equal protection under which the "extended republic's" broadly focused legislature would have monitored local laws and vetoed those that were parochial and "unjust." Rejecting this proposal to structure equal protection into the "interior" operation of …

The Economics Of Form And Substance In Contract Interpretation, Avery W. Katz

Faculty Scholarship

For over a century, legal commentators have debated the relative merits of formal and substantive approaches to the interpretation of contracts; in recent years, the debate has increasingly been conducted in the language of the economic approach to contract law. While this new wave of scholarship has been relatively successful in relating the traditional debates over formalism to specific transactional and institutional problems such as imperfect information, it has been less productive in terms of generating useful legal or policy recommendations. This Essay proposes a different approach: one that focuses on private rather than public legal decisionmakers as its primary …

Balance In The Taxation Of Derivative Securities: An Agenda For Reform, David M. Schizer

Faculty Scholarship

It is well understood that aggressive tax planning with derivatives threatens the U.S. income tax system. The conventional solution to this threat has been consistency, meaning that the same tax treatment should apply to all economically comparable bets, regardless of the form used. Yet familiar political and administrative barriers stand in the way of achieving this lofty goal.

This Article develops a reform agenda to eliminate tax planning without requiring consistency. Policymakers should strive instead for a new goal, which this Article calls "balance": For each risky position, the treatment of gains should match the treatment of losses. For example, …

Embedded Options In The Case Against Compensation In Contract Law, Robert E. Scott, George G. Triantis

Faculty Scholarship

Although compensation is the governing principle in contract law remedies, it has tenuous historical, economic, and empirical support. A promisor's right to breach and pay damages is only a subset of a larger family of termination rights that do not purport to compensate the promisee for losses suffered when the promisor walks away from the contemplated exchange. These termination rights can be characterized as embedded options that serve important risk management functions. We show that sellers often sell insurance to their buyers in the form of these embedded call options, and that termination fees, including damages, are in essence option …

The Domesticated Liberty Of Lawrence V. Texas, Katherine M. Franke

Faculty Scholarship

In this Commentary, Professor Franke offers an account of the Supreme Court's decision in Lawrence v. Texas. She concludes that in overruling the earlier Bowers v. Hardwick decision, Justice Kennedy does not rely upon a robust form of freedom made available by the Court's earlier reproductive rights cases, but instead announces a kind of privatized liberty right that affords gay and lesbian couples the right to intimacy in the bedroom. In this sense, the rights-holders in Lawrence are people in relationships and the liberty right those couples enjoy does not extend beyond the domain of the private. Franke expresses …

Punishment, Guilt, And Shame In Biblical Thought, George P. Fletcher

Faculty Scholarship

The centrality of guilt in the criminal law provides puzzling perspective in the perennial debate on the nature and purpose of punishment. Why is it that all legal systems use this highly charged moral term to refer to an essential component of liability to punishment? This question is not easily answered. The reliance on the concept of guilt in the criminal law is suffused with paradox and mystery.

Remembering Oscar Schachter, Lori Fisler Damrosch

Faculty Scholarship

In this issue of the Columbia Law Review and also in the pages of journals that specialize in international and transnational law,' my colleagues and I celebrate the professional accomplishments of Oscar Schachter as a superlative scholar and public servant, as well as his qualities as a human being. Here, I will speak mainly in the personal rather than professional voice. One of the reasons I want to reminisce rather than eulogize is the very impossibility of putting the proper frame on the superlatives.

International Income Taxation, Michael Graetz

Faculty Scholarship

Much of what I will say here today is distilled from articles that I have written and things I have learned in putting together a book called Foundations of International Taxation.

It is difficult enough to fashion sensible tax policy in the domestic arena. The debate, for example, over whether the United States should impose a value-added tax has some international aspects, but it is primarily a debate about domestic policy. This is true generally about the debate over how much we should rely on income versus consumption taxation. This debate amply illustrates how hard it is to obtain agreement …

Supplemental Environmental Projects Have Been Effectively Used In Citizen Suits To Deter Future Violations As Well As To Achieve Significant Additional Environmental Benefits, Edward Lloyd

Faculty Scholarship

Supplemental Environmental Projects (SUPs) are environmentally benefical projects included in settlements of environmental law enforcement cases. Courts have addressed SEPs in two contexts: where proposed by parties in consent decrees and where courts have fashioned SEPs as apart of the relief ordered in an enforcement case. SEPs have been extensively used in both government and citizen enforcement cases despite the nearly universal absence of any explicit legislative authorization by Congress. Congress has tangentially recognized the place of SEPs in the penalty and deterrence scheme by giving the Administrator of the United States Environmental Protection Agency (EPA) and the Attorney General …

The Role Of Well-Being, Joseph Raz

Faculty Scholarship

"Well-being" signifies the good life, the life which is good for the person whose life it is. I have argued that well-being consists in a wholehearted and successful pursuit of valuable relationships and goals. This view, a little modified, is defended , but the main aim of the article is to consider the role of well-being in practical thought. In particular I will examine a suggestion which says that when we care about people, and when we ought to care about people, what we do, or ought to, care about is their well-being. The suggestion is indifferent to who cares …

The Case For Tradable Remedies In Wto Dispute Settlement, Kyle Bagwell, Petros C. Mavroidis, Robert W. Staiger

Faculty Scholarship

In response to concerns over the efficacy of the WTO dispute settlement system, especially in regard to its use by developing countries, Mexico has tabled a proposal to introduce tradable remedies within the Dispute Settlement Understanding. The idea is that a country that has won cause before the WTO, and who is facing non-implementation by the author of the illegal act but feels that its own capacity to exercise its right to impose countermeasures is unlikely to lead to compliance, can auction off that right. The attractiveness of this idea is that it offers an additional possibility to injured WTO …

Editorial: The European Union As A Constitutional Experiment, George Bermann

Faculty Scholarship

In the constellation of international governance regimes, the European Union occupies a singular place, and not merely because it has recently engaged in the process of drafting a document whose title includes the words A Constitution for Europe'. Even if that particular document, or any such document, were never to see the light of day as a fully adopted and ratified instrument (an eventuality I consider to be unlikely), the EU will already have been constitutionalised, albeit in a fashion unfamiliar to those who, like most of us, are accustomed to the constitutions of Nation States. To claim that the …

Uncorporated Professionals, John Romley, Eric L. Talley

Faculty Scholarship

Professional service providers who wish to organize as multi-person firms have historically been limited to the partnership form. Such organizational forms trade the benefit of risk diversification off against the costs of diluted incentives and liability exposure in choosing their optimal size. More recently, states have permitted limited-liability entities that combine the simplicity, flexibility and tax advantages of a partnership with the liability shield of a corporation. We develop a game theoretic model of professional-firm organization that integrates the provision of incentives in a multi-person firm with the choice of business form. We then test the model's predictions with a …

Toyota Jurisprudence: Legal Theory And Rolling Rule Regimes, William H. Simon

Faculty Scholarship

The engineering ideas associated with the Toyota Production System form a model of social organization that departs from bedrock assumptions of mainstream legal thought in both its rights-and-principles and law-and-economics variants.

In contrast to mainstream thought, the Toyota system (1) emphasizes the goals of learning and innovation (rather than of dispute resolution and the vindication of established norms and preferences), (2) combines the normative explicitness associated with formal rules with the continuous adjustment to particularity associated with informal norms (no dialectic of rules and standards), (3) treats normative decisionmaking in hard cases as presumptively collective and interdisciplinary (rather than the …

The (New?) Right Of Making Available To The Public, Jane C. Ginsburg

Faculty Scholarship

The Berne Convention 1971 Paris Act covered the right of communication to the public incompletely and imperfectly through a tangle of occasionally redundant or self-contradictory provisions on "public performance," "communication to the public," "public communication," "broadcasting," and other forms of transmission. Worse, the scope of rights depended on the nature of the work, with musical and dramatic works receiving the broadest protection, and images the least; literary works, especially those adapted into cinematographic works, lying somewhere in between. The 1996 WIPO Copyright Treaty rationalized and synthesized protection by establishing full coverage of the communication right for all protected works of …

Judicial Campaign Codes After Republican Party Of Minnesota V. White, Richard Briffault

Faculty Scholarship

The vast majority of judicial offices in the United States are subject to election. The votes of the people select or retain at least some judges in thirty-nine states, and all judges are elected in twenty-one states. By one count, 87% of the state and local judges in the United States have to face the voters at some point if they want to win or remain in office. Judicial elections, however, differ from elections for legislative or executive offices in a number of significant ways. In nineteen states, most judges are initially appointed but must later go before the voters …

The International Privacy Regime, Tim Wu

Faculty Scholarship

Privacy has joined one of many areas of law understandable only by reference to the results of overlapping and conflicting national agendas. What has emerged as the de facto international regime is complex. Yet based on a few simplifying principles, we can nonetheless do much to understand it and predict its operation.

First, the idea that self-regulation by the internet community will be the driving force in privacy protection must be laid to rest. The experience of the last decade shows that nation-states, powerful nation-states in particular, drive the system of international privacy. The final mix of privacy protection that …

Contracts – Only With Consent, Ronald J. Mann

Faculty Scholarship

My friend and former colleague Omri Ben-Shahar has established a reputation for providing nuanced and well-grounded applications of economic analysis to important problems of contract law. In recent years, he has undertaken the ambitious task of exploring a significant topic at the boundary of contract law: liability for problems that arise out of efforts to form a contract. The essay to which I reply, Contracts Without Consent: Exploring a New Basis for Contractual Liability, is his second work on that topic, following his 2001 article with Lucian Bebchuk entitled Precontractual Reliance. Collectively, these pieces provide a comprehensive analysis …

Understanding Macs: Moral Hazard In Acquisitions, Ronald J. Gilson, Alan Schwartz

Faculty Scholarship

The standard contract that governs friendly mergers contains a material adverse change clause (a "MAC") and a material adverse effect clause (a "MAE"); these clauses permit a buyer costlessly to cancel the deal if such a change or effect occurs. In recent years, the application of the traditional standard-like MAC and MAE term has been restricted by a detailed set of exceptions that curtails the buyer's ability to exit. The term today engenders substantial litigation and occupies center stage in the negotiation of merger agreements. This paper asks what functions the MAC and MAE term serve, what function the exceptions …

Be Careful What You Wish For: Legal Sanctions And Public Safety Among Adolescent Offenders In Juvenile And Criminal Court, Jeffrey Fagan, Aaron Kupchik, Akiva Liberman

Faculty Scholarship

Three decades of legislative activism have resulted in a broad expansion of states' authority to transfer adolescent offenders from juvenile to criminal (adult) courts. At the same time that legislatures have broadened the range of statutes and lowered the age thresholds for eligibility for transfer, states also have reallocated discretion away from judges and instituted simplified procedures that permit prosecutors to elect whether adolescents are prosecuted and sentenced in juvenile or criminal court. These developments reflect popular and political concerns that relatively lenient or attenuated punishment in juvenile court violates proportionality principles for serious crimes committed by adolescents, and is …

Sexual Tensions Of Post-Empire, Katherine M. Franke

Faculty Scholarship

In this essay Katherine Franke examines two contemporary cites in which state efforts to eradicate the traces of empire and to resurrect an authentic post-colonial nation have produced sexual subjects that serve as a kind of existential residue and reminder of a demonized colonial past and absence. Looking first at post-colonial Zimbabwe, Franke argues that President Mugabe's aggressively homophobic policies have played a key role in fortifying his leadership as authentically African and post-colonial.

Franke then turns to current efforts by the Mubarak government in Egypt to publically prosecute men for having sex with men. The Mubarak government has used …

Managing A Correctional Marketplace: Prison Privatization In The United States And The United Kingdom, David Pozen

Faculty Scholarship

This paper traces the recent history and development of privately operated prisons in the United States and the United Kingdom, and it compares their current role in the countries' correctional systems. The privatization movements of the U.S. and the U.K. were driven by similar factors, but the relative weight of these factors varied between the two. In the U.S., legal pressures to alleviate prison overcrowding and fiscal incentives to contract out prison construction were stronger, while in the U.K. the ideological and political aims of the governing party exerted more influence in stimulating privatization. America's experience with private prisons in …

Citizens To Preserve Overton Park V. Volpe, Peter L. Strauss

Faculty Scholarship

This essay is one of a series destined to appear in a Foundation Press book, Administrative Law Stories, now set for publication in the fall of 2005. The decision in Citizens to Preserve Overton Park v. Volpe represents a transition from political to judicial controls over decisions broadly affecting a wide range of community interests. Unmistakable and dramatic as it is, that transition is not universally applauded. But the transition was striking and quick. The late sixties and early seventies saw an explosion of new national legislation on social and environmental issues, that often provided explicitly or implicitly for citizen …

Mome In Hindsight, Ronald J. Gilson, Reinier Kraakman

Faculty Scholarship

Two decades ago, the Virginia Law Review published our article “The Mechanisms of Market Efficiency” (MOME), in which we tried to discern the institutional underpinnings of financial market efficiency. We concluded that the level of market efficiency with respect to a particular fact depends on which of several market mechanisms — universally informed trading, professionally informed trading, derivatively informed trading, and uninformed trading (each of which we explain below) — operates to reflect that fact in market price. Which mechanism is operative, in turn, depends on how widely the fact is distributed among traders, which, I turn, depends on the …

The Broadband Debate, A User's Guide, Tim Wu

Faculty Scholarship

Back in the 1990s, Internet communications policy was easier. It was easy to agree that the network's growth ought not be impended by excessive government regulation. It was easy to hope that the Internet would solve all of its own problems. Yet it turned out that the success of the network was hiding strong differences of opinion. Today, the euphoria is gone, and the divide in Internet communications policy has become clear and unmistakable. It most clearly a divide between two distinct groups: the self-proclaimed "Openists" and "Deregulationists."

This divide will do much to inform the reform of the Telecommunications …

The Rise Of State Bankruptcy-Directed Legislation, Ronald J. Mann

Faculty Scholarship

The papers at this conference generally focus on the rise of securitization and the possibility that statutes designed to remedy abuses of securitization will wreak undue havoc on our capital markets. I take my starting point from the relatively intractable policy questions that those problems raise. It seems well accepted that securitization provides financing at lower cost to the large companies that use those transactions. If so, rules fostering securitization could enhance the overall performance of our economy. At the same time, there are legitimate concerns that the rise of securitization makes it less likely that large companies in financial …

The Efficient Design Of Option Contracts: Principles And Applications, Avery W. Katz

Faculty Scholarship

The law of contracts has often treated options quite differently from other contractual transactions; for example, the characterization of a transaction as an option contract calls forth specially required formalities, but on the other hand often has the effect of releasing parties from doctrinal limitations on their contractual freedom, such as the duty to mitigate damages or the rule that holds excessively high liquidated damages void as penalties. Such differential treatment is challenging to explain from a functional viewpoint, in part because all contracts resemble options to the extent they are enforceable in terms of monetary damages, and in part …

Marriage, Cohabitation, And Collective Responsibility For Dependency, Elizabeth S. Scott

Faculty Scholarship

Marriage has fallen on hard times. Although most Americans say that a lasting marriage is an important part of their life plans, the institution no longer enjoys its former exclusive status as the core family form. This is so largely because social norms that regulate family life and women's social roles have changed. A century (or even a couple of generations) ago, marriage was a stable economic and social union that, for the most part, lasted for the joint lives of the spouses. It was the only option for a socially sanctioned intimate relationship and was the setting in which …

Corporate Governance, Executive Compensation And Securities Litigation, Eric L. Talley, Gudrun Johnsen

Faculty Scholarship

It is generally accepted that good corporate governance, executive compensation and the threat of litigation are all important mechanisms for incentivizing managers of public corporations. While there are significant and robust literatures analyzing each of these policy instruments in isolation, their mutual relationship and interaction has received somewhat less attention. Such neglect is mildly surprising in light of a strong intuition that the three devices are structurally related to one another (either as complements or substitutes). In this paper, we construct an agency cost model of the firm in which corporate governance protections, executive compensation levels, and litigation incentives are …