Law Commons^™

Reasons: Explanatory And Normative, Joseph Raz

Faculty Scholarship

‘A reason’ has two meanings: explanatory reasons are facts that contribute to an explanation (of anything explained); normative reasons are facts that favour and guide responses, in one’s emotions, beliefs, actions, etc., to how things are. The two kinds of reasons are connected by their connection to the capacity of Reason, or rationality, and by the normative/explanatory nexus, i.e. by the fact that normative reasons can explain the response that they favour. Normative reasons are — potentially — explanatory reasons, but the explanations they provide are of a special kind that presupposes their normative character. The chapter builds on …

The Genesis Of The Gats (General Agreement On Trade In Services), Juan A. Marchetti, Petros C. Mavroidis

Faculty Scholarship

The Uruguay Round services negotiations saw the light of day amidst pressures from lobbies in developed countries, unilateral retaliatory actions, and ideological struggle in the developing world. The final outcome, the GATS, certainly characterized by a complex structure and awkward drafting here and there, is not optimal but is an important first step towards the liberalization of trade in services. This article traces the GATS negotiating history, from its very beginning in the late 1970s, paying particular attention to the main forces that brought the services dossier to the multilateral trading system (governments, industries, and academics), and the interaction between …

Subsidizing The Press, David M. Schizer

Faculty Scholarship

Through beat reporting and investigative journalism, reporters monitor the foundational institutions of our society. This reporting has value even to those who never buy a newspaper or read a website. For example, subscribers and nonsubscribers alike benefit when government officials respond to a critical news story by eliminating an abusive practice. Yet unfortunately, the professional press is experiencing a severe economic crisis. Layoffs are pervasive, and news organizations across the nation are on the brink of insolvency. As a result, a number of commentators have proposed government subsidies for the press. Yet if the press becomes financially dependent on the …

Dignifying Rights: A Comment On Jeremy Waldron’S Dignity, Rights, And Responsibilities, Katherine M. Franke

Faculty Scholarship

In Dignity, Rights, and Responsibilities1 Jeremy Waldron offers a characteristically thoughtful and elegant account of rights, or as he calls it, responsibility-rights. As Waldron rightfully acknowledges, rights understood as a form of responsibility are not meant to capture every species of rights, but to provide us with a new analytic resource for better understanding a particular subset of rights that curiously entail a form of responsibility on the part of the rights holder. The link between rights and responsibility, Waldron argues, is built upon a strong foundational commitment to human dignity. The most compelling contribution of Waldron's paper is his …

Shouting "Fire!" In A Theater And Vilifying Corn Dealers, Vincent A. Blasi

Faculty Scholarship

Five years ago, Fred Schauer published an article with the intriguing title: "Do Cases Make Bad Law?" Playing off Holmes' observation that "[g]reat cases like hard cases make bad law," Schauer explored the possibility, as he put it, that "it is not just great cases and hard cases that make bad law, but simply the deciding of cases that makes bad law.” His concern, confirmed and deepened by his characteristically balanced inquiry, was that general principles forged in the resolution of specific legal disputes can suffer by virtue of that provenance. Because such principles by definition are meant to carry …

The Supreme Court Trilogy And Its Impact On U.S. Arbitration Law, George A. Bermann

Faculty Scholarship

The Supreme Court’s most recent “trilogy” of arbitration law rulings – Stolt-Nielsen, Rent-A-Center and AT&T Mobility v. Concepcion – deserves the lavish attention it has been receiving, as evidenced by the contributions of Tom Stipanowich and Alan Rau in this special issue. Professors Stipanowich and Rau rightly view the three rulings as “of a piece,” revealing a determination on the part of the Court’s majority to enhance the autonomy and effectiveness of arbitration as a dispute resolution mechanism, even at the expense of consumer welfare. The trilogy has the result, and most likely the purpose, of weakening safeguards that …

'American Electric Power’ Leaves Open Many Questions For Climate Litigation, Michael B. Gerrard

Faculty Scholarship

On June 20, 2011, the U.S. Supreme Court issued its much-anticipated decision in American Electric Power v. Connecticut, the second climate change case to be decided by that Court and the first to concern common law claims. The decision resolves a few issues but leaves many others open.

The Last Plank: Rethinking Public And Private Power To Advance Fair Housing, Olatunde C.A. Johnson

Faculty Scholarship

The persistence of housing discrimination more than forty years after the passage of the federal Fair Housing Act (FHA) of 1968 is among the most intractable civil rights puzzle. For the most part, this puzzle is not doctrinal: the Supreme Court has interpreted the FHA only a handful of times over the last two decades – a marked contrast to frequent doctrinal contestations over the statutory scope and constitutionality of federal laws governing employment discrimination and voting rights. Instead, the central puzzle is the inefficacy of the FHA's enforcement regime given that, in formal terms, the regime is the strongest …

Stimulus And Civil Rights, Olatunde C.A. Johnson

Faculty Scholarship

Federal spending has the capacity to perpetuate racial inequality, not simply through explicit exclusion, but through choices made in the legislative and institutional design of spending programs. Drawing on the lessons of New Deal and postwar social programs, this Essay offers an account of the specificfeatures offederal spending that give it salience in structuring racial arrangements. Federal spending programs, this Essay argues, are relevant in structuring racial inequality due to their massive scale, their creation of new programmatic and spending infrastructures, and the choices made in these programs as to whether to impose explicit inclusionary norms on states and localities. …

Reconciling European Union Law Demands With The Demands Of International Arbitration, George A. Bermann

Faculty Scholarship

European Union ("EU" or "Union") law and the law of international arbitration have traditionally occupied largely separate worlds, as if arbitral tribunals would rarely be the fora for the resolution of EU law claims and as if EU law, in turn, had little concern with arbitration. For several reasons, this pattern has recently been altered, although the relationship between EU law and international arbitration law is at present anything but settled. From the present perspective, the past looks like an age of innocence, for as these two worlds have begun to intersect, they have not done so entirely harmoniously.

Part …

Universal Exceptionalism In International Law, Anu Bradford, Eric A. Posner

Faculty Scholarship

A trope of international law scholarship is that the United States is an "exceptionalist" nation, one that takes a distinctive (frequently hostile, unilateralist, or hypocritical) stance toward international law. However, all major powers are similarly "exceptionalist," in the sense that they take distinctive approaches to international law that reflect their values and interests. We illustrate these arguments with discussions of China, the European Union, and the United States. Charges of international-law exceptionalism betray an undefended assumption that one particular view of international law (for scholars, usually the European view) is universally valid.

Copyright In The Digital Environment: Restoring The Balance, Jane C. Ginsburg

Faculty Scholarship

Good evening. Please find your seats, and it's wonderful to see so many people here. Welcome to the Twenty-Fourth Annual Manges Lecture. The Horace S. Manges Lecture and Conference Fund was established by the firm of Weil, Gotshal and Manges in memory of Horace S. Manges, Columbia Law School Class of 1919. Mr. Manges was a distinguished trial lawyer who worked on behalf of countless writers and publishers.

Tonight's speaker, Dr. Francis Gurry, was appointed Director General of the World Intellectual Property Organization, WIPO, on October 30, 2008. During a career at WIPO that began in 1985, Francis Gurry was …

A Foxy Hedgehog: The Consistent Perceptions Of Carol Rose, Jedediah S. Purdy

Faculty Scholarship

In a tribute like this, the question arises unavoidably: is Carol a fox or a hedgehog? That is, following Isaiah Berlin’s iconic distinction, does she know many things, like the fox, or, like the hedgehog, does she know one big thing?

It may seem strange that the ecosystem of legal scholarship should contain so little biodiversity; but the question engaged me. I started out thinking that Carol must be a fox, but I may have thought so for the wrong reasons: reasons of style, basically, having to do with her light-footedness, her deftness, and the recurrent sense that, just when …

Left, Right, And Center: Strategic Information Acquisition And Diversity In Judicial Panels, Matthew L. Spitzer, Eric L. Talley

Faculty Scholarship

This paper develops and analyzes a hierarchical model of judicial review in multimember appellate courts. In our model, judicial panels acquire information endogenously, through the efforts of individual panelists, acting strategically. The resulting equilibria strongly resemble the empirical phenomena collectively known as "panel effects" – and in particular the observed regularity with which ideological diversity on a panel predicts greater moderation in voting behavior (even after controlling for the median voter's preferences). In our model, non-pivotal panel members with ideologies far from the median have the greatest incentive to acquire additional policy-relevant information where no one on a unified panel …

Corporations, Corruption, And Complexity: Campaign Finance After Citizens United, Richard Briffault

Faculty Scholarship

Few campaign finance cases have drawn more public attention than the Supreme Court's decision in Citizens United v. FEC. The Court's invalidation of a sixty-year-old federal law – and comparable laws in two dozen states – banning corporations from engaging in independent spending in support of or opposition to candidates strongly affirms the right of corporations to engage in electoral advocacy. Critics – and most, albeit not all, of both the popular and academic commentary on the decision has been critical – have condemned the idea that corporations enjoy the same rights to spend on elections as natural persons. …

Inside Out, Elizabeth F. Emens

Faculty Scholarship

Russell Robinson has done it again. With Masculinity as Prison: Sexual Identity, Race, and Incarceration, he has given us another provocative Article, which illuminates a phenomenon in the world and, indirectly, in ourselves. The Article represents much of what generally makes Robinson’s work so compelling. First, he writes about tremendously complex subjects and attends to their many complexities in remarkably lucid prose. Second, despite his critical perspective, he does not hesitate to make prescriptive arguments.

In this Article, he even ventures into the hallowed ground of constitutional argument, something he has not done since his first article on race-based …

Justice Stevens And The Obligations Of Judgment, David Pozen

Faculty Scholarship

How to sum up a corpus of opinions that spans dozens of legal fields and four decades on the bench? How to make the most sense of a jurisprudence that has always been resistant to classification, by a jurist widely believed to have "no discernible judicial philosophy"? These questions have stirred Justice Stevens' former clerks in recent months. Since his retirement, many of us have been trying to capture in some meaningful if partial way what we found vital and praiseworthy in his approach to the law. There may be something paradoxical about the attempt to encapsulate in a formula …

Designing Agency Independence, Gillian E. Metzger

Faculty Scholarship

How do we structure an agency to be independent? Not surprisingly, the answer to that question depends on what we want the agency to be independent from.

Private Rights In Public Lands: The Chicago Lakefront, Montgomery Ward, And The Public Dedication Doctrine, Joseph D. Kearney, Thomas W. Merrill

Faculty Scholarship

When one thinks of how the law protects public rights in open spaces, the public trust doctrine comes to mind. This is especially true in Chicago. The modem public trust doctrine was born in the landmark decision in Illinois Central Railroad Co. v. Illinois, growing out of struggles over the use of land along the margin of Lake Michigan in that city. Yet Chicago's premier park – Grant Park, sitting on that land in the center of downtown Chicago – owes its existence to a different legal doctrine. This other doctrine, developed by American courts in the nineteenth century, …

Carbon Offshoring: The Legal And Regulatory Framework For Coal Exports, Daniel M. Firger, Robert Denicola, Katherine English, Daniel Raichel, Ross Wolfarth, Kennan Zhong

Sabin Center for Climate Change Law

This report examines the legal and regulatory framework for U.S. coal exports, focusing in particular on the significant improvements in railroad and port infrastructure that will be necessary in order to boost the volume of overseas coal shipments to the degree anticipated by recent industry projections. While existing railroads and ports have the capacity to handle current coal export volumes, much more infrastructure will be needed to meet surging foreign demand. A wide variety of new construction projects are under consideration to expand capacity and relieve congestion. These range from double-tracking existing Class I railroad rights of way to dredging …

Shopping For State Constitutions: Unequal Gift Clauses As Obstacles To Optimal State Encouragement Of Carbon Sequestration, Nicholas Houpt

Sabin Center for Climate Change Law

Carbon capture and sequestration technology (CCS) could drastically reduce CO2 emissions from coal-fired power plants, thereby mitigating climate change. CCS, however, faces a difficult barrier to market entry: liability for the technology’s many long-term risks. States would like to alleviate this long-term liability problem to capture CCS’s social benefits. Some state constitutions, however, have provisions called “gift clauses” that prohibit giving aid to private parties. This Note argues that some state constitutions’ gift clauses prevent indemnification of private CCS developers. As this Note’s fifty state survey shows, other state constitutions allow indemnification. This asymmetry in constitutionally-allowed financial encouragement results in …

Reducing Mass Incarceration: Lessons From The Deinstitutionalization Of Mental Hospitals In The 1960s, Bernard Harcourt

Faculty Scholarship

In a message to Congress in 1963, President John F. Kennedy outlined a federal program designed to reduce by half the number of persons in custody. The institutions at issue were state hospitals and asylums for the mentally ill, and the number of such persons in custody was staggeringly large, in fact comparable to contemporary levels of mass incarceration in prisons and jails. President Kennedy's message to Congress – the first and perhaps only presidential message to Congress that dealt exclusively with the issue of institutionalization in this country – proposed replacing state mental hospitals with community mental health centers, …

The Rule Of Law As A Law Of Standards, Jamal Greene

Faculty Scholarship

Justice Antonin Scalia titled his 1989 Oliver Wendell Holmes Lecture at Harvard Law School The Rule of Law as a Law of Rules. The lecture posed the sort of dichotomy that has become a familiar feature of Justice Scalia's jurisprudence and of his general approach to judging. On one hand are judges who recognize that the only legitimate means by which they may adjudicate cases in a democracy is to seek to do so through rules of general application. On the other hand are those judges who generally prefer to adopt an all-things considered balancing approach to adjudication. This latter …

Regulatory Fictions: On Marriage And Countermarriage, Elizabeth F. Emens

Faculty Scholarship

Debates about marriage currently capture much public attention. Scholars have pushed beyond the question of whether gays are worthy of marriage to ask whether marriage is worthy of gays. The present moment of questioning marriage in its current form may be brief Thus, we should take this opportunity to imagine the widest possible range of alternatives to our current marriage regime – what I call countermarriage regimes. This Essay draws on two unlikely sources of legal innovation to expand our thinking about marriage alternatives: literature and anti-gay law. Literature offers an array of countermarriage regimes, including exploding marriage, three-strikes marriage, …

Federalism And Federal Agency Reform, Gillian E. Metzger

Faculty Scholarship

This Article assesses three major preemption decisions from the 2008-2009 Term – Altria Group, Inc. v. Good, Wyeth v. Levine, and Cuomo v. Clearing House Ass'n – for their implications about the role of the states in national administrative governance. The Article argues the decisions are centrally concerned with using state law and preemption analysis to improve federal administration and police against federal agency failure. Federalism clearly factors into the decisions as well, but it does so more as a mechanism for enhancing federal agency performance than as a principle worth pursuing in its own right.

The decisions' …

Enforcing The Rules: Government And Citizen Oversight Of Mining, Erin Smith, Peter Rosenblum

Human Rights Institute

In recent history, mining has failed to deliver many of the benefits citizens expect, particularly in poorer nations rich in natural resources and high in hopes. Many of the reasons remain unclear. In some cases, the problem is linked to bad deals with mining companies. But no matter the quality of the deal, other problems arise from failure to effectively monitor and enforce the existing obligations. This report examines the monitoring of mining obligations, characterizes the main gaps, identifies policy options and good practices, and proposes practical ways for both government and civil society to improve monitoring and enforcement.

Serving 99 To 149 Years For Wearing Butt-Huggers And Resisting To Subscribe To Cable Tv: The Presence Of The Law In Chicano Theatre, Maria Patrice Amon

Studio for Law and Culture

In the canon of Chicano theatre, the law holds a prominent role; the relationship between Chicanos and the law is a theme explored widely across Chicano theatre in both comedy and tragedy. This paper discusses how the comedy of Chicano theatre conceals the insidiousness of unchallenged racial stereotypes and acts as a safety valve to release the pressures of an abjected community. Yet, where comedy conceals the structure of abjection, drama critically challenges the status quo Chicano drama is capable of questioning the authority of the dominant hegemony over the cultures it oppresses. Beginning from a framing of the law …

The (Im)Possibility Of "Standard Technical Measures" For Ugc Websites, Laura G. Gallo

Kernochan Center for Law, Media, and the Arts

In today’s highly litigious legal landscape, one might doubt that there could ever be an “open, fair, voluntary” agreement between copyright owners and service providers to police infringement. Congress nevertheless envisioned such a consensus when it developed § (i) of the Digital Millennium Copyright Act (DMCA): “Conditions for [Safe Harbor] Eligibility.” An often-overlooked provision of the DMCA, § 512(i) directs right holders and Internet service providers to work together and agree on “standard technical measures” to “identify or protect copyrighted works.” In addition to being the product of consensus, these measures must be “available ... on reasonable and nondiscriminatory terms” …

Audiovisual Works And The Work For Hire Doctrine In The Internet Age, John L. Schwab

Kernochan Center for Law, Media, and the Arts

The work for hire doctrine is a legal mechanism by which the creator of an artistic work’s employer is deemed the author of that work. While, historically, such employer ownership schemes were not recognized by courts, today the work for hire doctrine is a firmly embedded part of American copyright law. In particular, work for hire has developed into an essential tool of the audiovisual entertainment industry. As discussed in Part I.B, infra, there are a number of reasons that work for hire is a particularly useful ownership allocation scheme for audiovisual works.

Modern technological developments are, however, rapidly altering …

The Right To Remain Anonymous: Anonymous Speakers, Confidential Sources And The Public Good, Jocelyn Hanamirian

Kernochan Center for Law, Media, and the Arts

In the digital age, the news media gives voice to anonymous speakers in two ways: reporters may extend confidentiality to sources in exchange for newsworthy information, or a news website may host an online comment function that allows readers to post their reactions to content pseudonymously. Of these two groups of anonymous speakers, only online posters enjoy certain First Amendment protection against a subpoena seeking disclosure of their identities.

The reporter’s privilege has always been legally defined as the professional privilege of a reporter to maintain the confidentiality of his sources. Yet as with all evidentiary privileges, the reporter’s privilege …