Law Commons^™

Law As Persuasion, Bert I. Huang

Faculty Scholarship

When does the law persuade us about what is right or wrong – and when does it not? On topics ranging from racial equality to abortion to same-sex marriage, historians have debated and puzzled over the law’s persuasive force on our collective moral intuitions. Meanwhile, other scholars have sought out individual-level insights into the psychology of law’s persuasion, under the microscope of controlled experiments.

This chapter presents evidence of the law’s influence on our moral intuitions in a survey experiment based on a classic dilemma known as the “trolley problem,” in which someone must make a choice about whether to …

The International Law Profile Of The Ali, George A. Bermann

Faculty Scholarship

Though its focus, most notably in its Restatements, has traditionally been on domestic U.S. law, the American Law Institute (ALI) has conspicuously turned “international” in recognition of the fact that U.S. law does not, in the present world, operate in isolation from the law of foreign jurisdictions and international institutions. To be sure, the two most prominent Restatements in the field continue to bear the term “U.S.” in their title: “Restatement of the Foreign Relations Law of the United States” and “The U.S. Law of International Commercial and Investor-State Arbitration.” But both present bodies of law profoundly influenced by, and …

Anticipatory Deference: What Will Courts Decide And Not Decide Before Enforcing An Agreement To Arbitrate?, George A. Bermann

Faculty Scholarship

The question of deference in international arbitration usually arises when the issue before a decision-maker, be it a tribunal or a court, is one that has already been addressed and ruled upon by another decision-maker over an arbitration’s life-cycle. The salience of this question stems from the fact that international arbitration is a highly iterative and staged process over the course of which different actors are successively confronted with the same issue. This is particularly the case in regard to jurisdictional issues because the authority of a tribunal to entertain a dispute is potentially an issue at all stages.

But …

The Nih-Moderna Vaccine: Public Science, Private Profit, And Lessons For The Future, Christopher J. Morten

Faculty Scholarship

This commentary highlights the scientific history of the NIH-Moderna COVID-19 vaccine and corroborates Sarpatwari’s theme of private capture of value created by the public. The commentary also identifies missteps by the Trump and Biden Administrations and offers policy recommendations: better contracts with and incentives for pharmaceutical manufacturers and a not-for-profit “public option” for pharmaceutical development.

Understanding Intellectual Property: Expression, Function, And Individuation, Mala Chatterjee

Faculty Scholarship

Underlying the fundamental structure of intellectual property law — specifically, the division between copyright and patent law — are at least two substantive philosophical assumptions. The first is that artistic works and inventions are importantly different, such that they warrant different legal systems: copyright law on the one hand, and patent law on the other. And the second is that particular artistic works and inventions can be determinately individuated from each other, and can thereby be the subjects of distinct and delineated legal rights. But neither the law nor existing scholarship provides a comprehensive analysis of these categories, what distinguishes …

Intra-Eu Investment Disputes And The Monopoly Over The Interpretation Of Eu Law, Petros C. Mavroidis, Frederico Ortino

Faculty Scholarship

Following a recent European Charter Treaty (“ECT”) decision, it appears that the fate of intra-EU investment disputes, when adjudicated in fora other than the Luxembourg courts, is finally all but sealed. In Green Power, an arbitration tribunal confirmed prior decisions taken in different jurisdictions that there is no room for adjudicating intra-EU investment disputes away from Luxembourg. This decision sided with the approach already developed by the Court of Justice of the European Union (“CJEU”) in three decisions, namely, Achmea, Komstroy, and PL Holdings, which in turn led to legislative action by the Energy Charter Treaty aiming to put an …

The (Immediate) Future Of Prosecution, Daniel C. Richman

Faculty Scholarship

Even as others make cogent arguments for diminishing the work of prosecutors, work remains – cases that must be brought against a backdrop of existing economic inequality and structural racism and of an array of impoverished institutional alternatives. The (immediate) future of prosecution requires thoughtful engagement with these tragic circumstances, but it also will inevitably involve the co-production of sentences that deter and incapacitate. Across-the-board sentencing discounts based on such circumstances are no substitute for the thoughtful intermediation that only the courtroom working group – judges, prosecutors and defense counsel- can provide. The (immediate) future also requires prosecutors to do …

Unexceptional Protest, Amber Baylor

Faculty Scholarship

Anti-protest legislation is billed as applying only in the extreme circumstances of mass-movements and large scale civil disobedience. Mass protest exceptionalism provides justification for passage of anti-protest laws in states otherwise hesitant to expand public order criminal regulation. Examples include a Virginia bill that heightens penalties for a “failure to disperse following a law officer’s order”; a Tennessee law directing criminal penalties for “blocking traffic”; a bill in New York criminalizing “incitement to riot by nonresidents.” These laws might be better described as antiprotest expansions of public order legislation.

While existing critiques of these laws emphasize the chilling effects on …

Statehood And Sea-Level Rise: Scenarios And Options, Michael B. Gerrard

Faculty Scholarship

Sea-level rise may make some low-lying nations uninhabitable by the end of this century, if not before. If a country is under water, is it still a state? Does it still have a seat in the United Nations? What is the citizenship, if any, of its displaced people?

These questions take on increasing urgency as the world continues doing too little to avert catastrophic climate change. Many climate policy analyses agree the goal should be to keep global average temperatures within 1.5°C (2.7°F) above pre-industrial temperatures. That is the level that the small island states have demanded, as a matter …

Systematic Stewardship: It's Up To The Shareholders – A Response To Profs. Kahan And Rock, Jeffrey N. Gordon

Faculty Scholarship

As the author of an article entitled “Systematic Stewardship,” I read Professors Kahan and Rock’s article “Systematic Stewardship with Tradeoffs” (K&R) with considerable interest. I acknowledge the limits on deep asset manager engagement with sources of systematic risk in light of present institutional arrangements and the politics of the moment. Yet I think the most important move in the K&R analysis — the privileging of a “single firm focus” in corporate law instead of a “portfolio firm focus” — simply doesn’t account for the evolution that has already occurred in law and practice.

Long before the development of index funds, …

Publicizing Corporate Secrets, Christopher J. Morten

Faculty Scholarship

Federal regulatory agencies in the United States hold a treasure trove of valuable information essential to a functional society. Yet little of this immense and nominally “public” resource is accessible to the public. That worrying phenomenon is particularly true for the valuable information that agencies hold on powerful private actors. Corporations regularly shield vast swaths of the information they share with federal regulatory agencies from public view, claiming that the information contains legally protected trade secrets (or other proprietary “confidential commercial information”). Federal agencies themselves have largely acceded to these claims and even fueled them, by construing restrictively various doctrines …

Energy Insecurity Mitigation: The Low Income Home Energy Assistance Program And Other Low-Income Relief Programs In The Us, Andrea Nishi, Diana Hernández, Michael B. Gerrard

Faculty Scholarship

Energy insecurity, defined as the “inability to meet basic household energy needs,” can be both a chronic and an acute problem. Chronic energy insecurity manifests as an inability to access or afford adequate supplies of energy, while acute energy insecurity arises when infrastructural, maintenance, environmental, or other external sources disrupt or impede access to energy. A substantial number of individuals and families across the United States experience energy insecurity, which can lead to a variety of adverse consequences including residential instability and poor health outcomes.

Misreading Campbell: Lessons For Warhol, Shyamkrishna Balganesh, Peter S. Menell

Faculty Scholarship

In Andy Warhol Foundation (AWF) v. Goldsmith, the Supreme Court is set to revisit its most salient fair use precedent that introduced the idea of a “transformative use.” Purporting to rely on the Court’s adoption of “transformative use” as a way of understanding the fair use doctrine in Campbell v. Acuff-Rose Music, Inc., many lower courts, including the district court below, have effectively substituted an amorphous “transformativeness” inquiry for the full statutory framework and factors that Congress and Campbell prescribe. At the oral argument in AWF, the Justices focused on how the transformativeness of a work might …

China In The Wto Twenty Years On: How To Mend A Broken Relationship?, Petros C. Mavroidis, André Sapir

Faculty Scholarship

China’s participation in the World Trade Organization (WTO) has been a rollercoaster of milestones and frictions. China has emerged as a leading trading nation, which has contributed to the expansion of world trade. Some of its trading partners, however, and most vocally the United States, complain that China has reached its new status by eluding its WTO commitments. Under President Trump, the United States reacted strongly against China, almost bringing the WTO(but not China!) to its knees. These actions have been criticized in different ways: Some underline their unilateral character (and the ensuing legal issues they raise), whereas others focus …

Political Equality, Gender, And Democratic Legitimation In Dobbs, Aliza Forman-Rabinovici, Olatunde C.A. Johnson

Faculty Scholarship

This Article examines the U.S. Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization, demonstrating how the Court deploys new arguments about women’s political equality — alongside long-standing arguments about federalism and judicial minimalism — to legitimate the overruling of Roe v. Wade. In contending that abortion rights are better determined by legislatures, the Dobbs Court advances a thin conceptual account of democracy and political equality that ignores a range of anti-democratic features of the political process that shape abortion policy — such as partisan politics and gerrymandering — as well the absence of women in the …

Status Report On Principles Of International And Human Rights Law Relevant To Climate Change, Katelyn Horne, Maria Antonia Tigre, Michael B. Gerrard

Faculty Scholarship

The report aims to provide high-level guidance on the legal issues to be analyzed by the ICJ on the advisory opinion request on climate change. The status report addresses (i) advisory proceedings before the ICJ, including the Court’s jurisdiction and procedure (Section II), and (ii) key legal principles relevant to the request for an advisory opinion, including principles of international environmental law and international human rights law (Section III). The report identified, in a non-exhaustive manner, key relevant principles of international environmental law, key relevant principles of international human rights law, and issues of intergenerational equities that apply to the …

New York Adopts Nation’S Strongest Environmental Justice Law, Michael B. Gerrard, Edward Mctiernan

Faculty Scholarship

On March 3, New York Gov. Kathy Hochul signed the strongest environmental justice (EJ) law in the United States. While federal guidelines and the laws of some other states — notably California, Massachusetts, and Washington — require analysis, disclosure and consideration of EJ issues, only a New Jersey law adopted in 2020 imposed substantive limitations, as we discussed in our May 12, 2021, column. New York’s new law—building on enactments in 2019 and 2020 — is even more restrictive.

The new law — which we’ll call the EJL — provides that the Department of Environmental Conservation(DEC) “shall not issue an …

Epic Fail: Harkenrider V. Hochul And New York's 2022 Misadventure In "Independent" Redistricting, Richard Briffault

Faculty Scholarship

In 2014, following passage in two successive legislatures, New York voters ratified amendments to the state constitution to change both the process and substantive rules governing the decennial redistricting of the state’s legislature and congressional delegation. The constitution now includes multiple new substantive requirements for districting plans, including a prohibition on the “draw[ing of] [districts] to discourage competition or for the purpose of favoring or disfavoring incumbents or other particular candidates or political parties.” It also directs the creation of an “Independent Redistricting Commission” (“IRC”) to draw up, for submission to the legislature, maps that, following an extensive process of …

Q&A With Lina Khan, Chair Of The U.S. Federal Trade Commission And Mark Glick, Professor Of Economics At The University Of Utah, Lina M. Khan

Faculty Scholarship

Let me tell you a little about Lina. Lina attended Yale Law school and while a third-year law student she wrote her famous and influential article Amazon’s Anti-Trust Paradox. Then, after graduating from law school, she worked as the legal director at the Open Markets Institute and during that period she continued to write a large number of influential antitrust papers. She then joined the faculty of my alma mater, Columbia Law School. In 2019, she was appointed as counsel to the U.S. House Judiciary Subcomittee on Antitrust, Commercial, and Administrative Law and, in 2021, President Biden appointed her …

Price Gouging In A Pandemic, Christopher Buccafusco, Daniel Hemel, Eric L. Talley

Faculty Scholarship

The COVID-19 pandemic led to acute supply shortages across the country as well as concerns over price increases amid surging demand. In the process, it reawakened a debate about whether and how to regulate “price gouging” — a controversy that continues as inflation has accelerated even as the pandemic abates. Animating this debate is a longstanding conflict between laissez-faire economics, which champions price fluctuations as a means to allocate scarce goods, and perceived norms of consumer fairness, which are thought to cut strongly against sharp price hikes amid shortages.

This Article provides a new, empirically grounded perspective on the price …

Tribute To R. Kent Greenawalt: A Common-Law Thinker In A Text Driven Age, Peter L. Strauss

Faculty Scholarship

Kent Greenawalt was my colleague and friend for half a century. Over those years, we shared responsibility both for students at the beginning of their legal studies and for candidates for the doctoral degree. The course in Legal Methods, while we each taught it, was an intensive three-week, thirty-nine class hour introduction to legal studies that divided its attention between common law case analysis and statutory interpretation; Kent’s nuanced understanding of both profoundly shaped my approach to each. In the doctoral program, he offered a graduate seminar on jurisprudence; my responsibility was for a seminar on legal education. Sharing these …

Just Transition Litigation In Latin America: An Initial Categorization Of Climate Litigation Cases Amid The Energy Transition, Maria Antonia Tigre, Lorena Zenteno, Marlies Hesselman, Natalia Urzola, Pedro Cisterna-Gaete, Riccardo Luporini

Sabin Center for Climate Change Law

Just transition litigation is a novel field representing a sub-set of climate change litigation cases that is under-researched and studied. The report provides a novel comparative analysis of legal developments found in 20 just transition litigation cases in four Latin American countries and questions whether initiatives for achieving energy transformation in the region may have erred in failing to consider key just transition principles or dimensions, leading applicants to bring legal cases to claim their rights or demand more just solutions. The cases found – limited to the energy sector – not only question decarbonization policies or projects (in typical …

Specific Performance: On Freedom And Commitment In Contract Law, Hanoch Dagan, Michael A. Heller

Faculty Scholarship

When should specific performance be available for breach of contract? This question — at the core of contract — divides common-law and civil-law jurisdictions and it has bedeviled generations of comparativists, along with legal economists, historians, and philosophers. Yet none of these disciplines has provided a persuasive answer. This Article provides a normatively attractive and conceptually coherent account, one grounded in respect for the autonomy of the promisor’s future self. Properly understood, autonomy explains why expectation damages should be the ordinary remedy for contract breach. This same normative commitment justifies the “uniqueness exception,” where specific performance is typically awarded, and …

Can Contract Emancipate? Contract Theory And The Law Of Work, Hanoch Dagan, Michael A. Heller

Faculty Scholarship

Contract and employment law have grown apart. Long ago, each side gave up on the other. In this Article, we re-unite them to the betterment of both. In brief, we demonstrate the emancipatory potential of contract for the law of work.

Today, the dominant contract theories assume a widget transaction between substantively equal parties. If this were an accurate description of what contract is, then contract law would be right to expel workers. Worker protections would indeed be better regulated by – and relegated to – employment and labor law. But contract law is not what contract theorists claim. Neither …

The Logic And Limits Of The Federal Reserve Act, Lev Menand

Faculty Scholarship

The Federal Reserve is a monetary authority subject to minimal executive and judicial oversight. It also has the power to create money, which permits it to disburse funds without drawing on the U.S. Treasury. Since 2008, it has leveraged this power to an unprecedented extent. It has rescued teetering financial conglomerates, purchased trillions of dollars of mortgage-backed securities, and opened numerous ad hoc lending facilities to support ordinary businesses, nonprofits, and municipalities.

This Article identifies the causes and consequences of the Federal Reserve's expanded footprint by recovering the logic and limits of its enabling act. It argues that to understand …

In California And Europe, A New Dawn For Corporate Climate Disclosure, Magali Delmas, Michael B. Gerrard, Eric Orts

Faculty Scholarship

The Securities and Exchange Commission (SEC) is expected to finalize a new rule this month to cover required corporate climate disclosures by public-reporting companies. But the bigger news is that California Gov. Gavin Newsom (D) has announced that he will soon sign into law two climate change disclosure bills passed by the state Legislature.

Our Unruly Administrative State, Philip A. Hamburger

Faculty Scholarship

One of the perennial academic rituals of administrative “law” is to explain its compatibility with the rule of law. As surely as seasons pass, academics muster their formidable intellectual resources to reassure us, and themselves, that in pursuing administrative power, they have not abandoned the rule of law.

A more immediate justificatory project might be to explain the constitutionality of the administrative state. But notwithstanding valiant efforts, its constitutionality remains in doubt. So a fallback measure of its legitimacy seems valuable.

From this perspective, even if the administrative state is not quite constitutional, it can enjoy legitimacy under traditional common …

Scaling Investment In Renewable Energy Generation To Achieve Sustainable Development Goals 7 (Affordable And Clean Energy) And 13 (Climate Action) And The Paris Agreement: Roadblocks And Drivers, Mithatcan Aydos, Perrine Toledano, Martin Dietrich Brauch, Ladan Mehranvar, Theodoros Iliopoulos, Sunayana Sasmal

Columbia Center on Sustainable Investment

The zero-carbon energy transition is the solution to the 2022 energy crisis and a fundamental part of the solution to the global climate crisis. Yet, there are relatively low levels of investment in renewable energy in developing countries, hindering their achievement of the Sustainable Development Goals (SDGs) and contribution to the Paris Agreement goals.

In 2021, the Asia–Pacific region (excluding China) accounted for less than 8% of investments in energy transition technologies, Latin America and the Caribbean for less than 4%, and Africa and the Middle East for less than 2%. Annual investment in zero-carbon energy in developing economies other …

Conflicts Between Ghg Accounting Methodologies In The Steel Industry, John Biberman, Perrine Toledano, Baihui Lei, Max Lulavy, Rohini Ram Mohan

Columbia Center on Sustainable Investment

Accurate, verifiable, and comparable greenhouse gas (GHG) emissions data throughout supply chains in the materials sector are necessary to drive decarbonization. This is particularly the case for the steel supply chain, a major source of GHG emissions with untapped potential for reduction. However, emissions accounting methods used by the steel industry suffer from gaps and misalignment, resulting in significant differences in reported GHG emissions. The result is a patchwork reporting landscape vulnerable to manipulation and miscommunication, generating little actionable data for policymakers, producers, customers, and investors. These shortcomings highlight the need for a harmonized carbon accounting framework for the steel …

Scaling Investment In Renewable Energy: Roadblocks And Drivers – Executive Summary, Mithatcan Aydos, Perrine Toledano, Martin Dietrich Brauch, Ladan Mehranvar, Theodoros Iliopoulos, Sunayana Sasmal

Columbia Center on Sustainable Investment

The zero-carbon energy transition is the solution to the 2022 energy crisis and a fundamental part of the solution to the global climate crisis. Yet, there are relatively low levels of investment in renewable energy in developing countries, hindering their achievement of the Sustainable Development Goals (SDGs) and contribution to the Paris Agreement goals.

In 2021, the Asia–Pacific region (excluding China) accounted for less than 8% of investments in energy transition technologies, Latin America and the Caribbean for less than 4%, and Africa and the Middle East for less than 2%. Annual investment in zero-carbon energy in developing economies other …