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The Illusion Of Influence: On Foucault, Nietzsche, And A Fundamental Misunderstanding, Bernard E. Harcourt Jan 2019

The Illusion Of Influence: On Foucault, Nietzsche, And A Fundamental Misunderstanding, Bernard E. Harcourt

Faculty Scholarship

We often say that Foucault was influenced by Nietzsche or, more simply, that Foucault was Nietzschean. That is a gross misunderstanding that fundamentally distorts our reading of Foucault’s writings and, worse, does violence to the critical method. Foucault was no more Nietzschean than he was “mad” because he studied madness or “neoliberal” because he studied Gary Becker’s economic writings. Instead, Foucault took Nietzsche’s discourse as an object of study – in a similar way that he took the discourse of madness, of the prison, and of sexuality as objects of study throughout his intellectual lifetime. Writings of Nietzsche ...


Seeing Transparency More Clearly, David E. Pozen Jan 2019

Seeing Transparency More Clearly, David E. Pozen

Faculty Scholarship

In recent years, transparency has been proposed as the solution to, and the cause of, a remarkable range of public problems. The proliferation of seemingly contradictory claims about transparency becomes less puzzling, this essay argues, when one appreciates that transparency is not, in itself, a coherent normative ideal. Nor does it have a straightforward instrumental relationship to any primary goals of governance. To gain greater purchase on how transparency policies operate, scholars must therefore move beyond abstract assumptions and drill down into the specific legal, institutional, historical, political, and cultural contexts in which these policies are crafted and implemented. The ...


Edward Snowden, National Security Whistleblowing, And Civil Disobedience, David E. Pozen Jan 2019

Edward Snowden, National Security Whistleblowing, And Civil Disobedience, David E. Pozen

Faculty Scholarship

No recent whistleblower has been more lionized or vilified than Edward Snowden. He has been nominated for the Nobel Peace Prize and denounced as a "total traitor" deserving of the death penalty. In these debates, Snowden's defenders tend to portray him as a civil disobedient. Yet for a range of reasons, Snowden's situation does not map neatly onto traditional theories of civil disobedience. The same holds true for most cases of national security whistleblowing.

The contradictory and confused responses that these cases provoke, this essay suggests, are not just the product of polarized politics or insufficient information. Rather ...


Evaluating Constitutional Hardball: Two Fallacies And A Research Agenda, Joseph Fishkin, David E. Pozen Jan 2019

Evaluating Constitutional Hardball: Two Fallacies And A Research Agenda, Joseph Fishkin, David E. Pozen

Faculty Scholarship

This Reply addresses the responses by Professors David Bernstein and Jed Shugerman to our essay Asymmetric Constitutional Hardball. Bernstein's response, we argue, commits the common fallacy of equating reciprocity with symmetry: assuming that because constitutional hardball often "takes two" to play, both sides must be playing it in a similar manner. Shugerman's response, on the other hand, helps combat the common fallacy of equating aggressiveness with wrongfulness: assuming that because all acts of constitutional hardball strain norms of governance, all are similarly damaging to democracy. We suggest that whereas Bernstein's approach would set back the burgeoning effort ...


The Last Refuge Of Scoundrels: The Problem Of Truth In A Time Of Lying, Bernard E. Harcourt Jan 2019

The Last Refuge Of Scoundrels: The Problem Of Truth In A Time Of Lying, Bernard E. Harcourt

Faculty Scholarship

This essay addresses the problem of truth today in light of the common belief, especially among progressives, that we have entered a post-truth age, as well as of the frequent claim that our post-truth society is the fault of postmodernists and their challenge to the objectivity of truth. The essay does not resolve the strategic question whether the post-truth argument is, as a purely tactical political matter, an effective approach to respond to the onslaught of misrepresentations and lies by President Donald Trump and the New Right. Instead, it explores the post-truth argument from a more synoptic perspective regarding the ...


Hardball And/As Anti-Hardball, David E. Pozen Jan 2019

Hardball And/As Anti-Hardball, David E. Pozen

Faculty Scholarship

Many commentators have expressed alarm at the apparent rise of "constitutional hardball" in the United States, the United Kingdom, and elsewhere. This short essay introduces the idea of "anti-hardball" as a potential antidote. Complicating matters, hardball and anti-hardball are not necessarily opposed in practice. Short-term hardball tactics will generally be more justified, the essay suggests, when tied to a longer-term anti-hardball strategy.


Activist Directors And Agency Costs: What Happens When An Activist Director Goes On The Board?, John C. Coffee Jr., Robert J. Jackson Jr., Joshua Mitts, Robert Bishop Jan 2018

Activist Directors And Agency Costs: What Happens When An Activist Director Goes On The Board?, John C. Coffee Jr., Robert J. Jackson Jr., Joshua Mitts, Robert Bishop

Faculty Scholarship

We develop and apply a new and more rigorous methodology by which to measure and understand both insider trading and the agency costs of hedge fund activism. We use quantitative data to show a systematic relationship between the appointment of a hedge fund nominated director to a corporate board and an increase in informed trading in that corporation’s stock (with the relationship being most pronounced when the fund’s slate of directors includes a hedge fund employee). This finding is important from two different perspectives. First, from a governance perspective, activist hedge funds represent a new and potent force ...


Economic Individualism And Preference Formation, Andrzej Rapaczynski Jan 2018

Economic Individualism And Preference Formation, Andrzej Rapaczynski

Faculty Scholarship

This note examines some issues involved in an attempt to go beyond the assumption, long-made by most economists, that people’s preferences are simply to be treated as “given” and that the principle of consumer sovereignty entails a refusal to consider some (or some people’s) revealed preferences as more authoritative than others. The most important break with that assumption has been the development of behavioral economics, which shows that people may not always know what they really want, and that economists have to develop a more critical approach, distinguishing people’s true preferences from those that are merely apparent ...


Critique & Praxis: A Pure Theory Of Illusions, Values, And Tactics, And An Answer To The Question: "What Is To Be Done?", Bernard E. Harcourt Jan 2018

Critique & Praxis: A Pure Theory Of Illusions, Values, And Tactics, And An Answer To The Question: "What Is To Be Done?", Bernard E. Harcourt

Faculty Scholarship

We are going through an unprecedented period of political instability. With the rise of the alt-right and of xenophobic sentiment, and the fallout of neoliberal government policies, our political future is at stake. These times call for the type of critical theory and praxis that gave rise to the Frankfurt School in the 1920s and to the critical ferment of the 1970s. Yet, in the face of our crises today, contemporary critical theory seems disarmed.

Critical theory is in disarray because of a wave of anti-foundational challenges in the 1960s that shattered the epistemological foundations of the Frankfurt School. The ...


Asymmetric Constitutional Hardball, Joseph Fishkin, David E. Pozen Jan 2018

Asymmetric Constitutional Hardball, Joseph Fishkin, David E. Pozen

Faculty Scholarship

Many have argued that the United States' two major political parties have experienced "asymmetric polarization" in recent decades: The Republican Party has moved significantly further to the right than the Democratic Party has moved to the left. The practice of constitutional hardball, this Essay argues, has followed a similar – and causally related – trajectory. Since at least the mid-1990s, Republican officeholders have been more likely than their Democratic counterparts to push the constitutional envelope, straining unwritten norms of governance or disrupting established constitutional understandings. Both sides have done these things. But contrary to the apparent assumption of some legal scholars, they ...


Transparency's Ideological Drift, David E. Pozen Jan 2018

Transparency's Ideological Drift, David E. Pozen

Faculty Scholarship

In the formative periods of American "open government" law, the idea of transparency was linked with progressive politics. Advocates of transparency understood themselves to be promoting values such as bureaucratic rationality, social justice, and trust in public institutions. Transparency was meant to make government stronger and more egalitarian. In the twenty-first century, transparency is doing different work. Although a wide range of actors appeal to transparency in a wide range of contexts, the dominant strain in the policy discourse emphasizes its capacity to check administrative abuse, enhance private choice, and reduce other forms of regulation. Transparency is meant to make ...


How Constitutional Norms Break Down, Josh Chafetz, David E. Pozen Jan 2018

How Constitutional Norms Break Down, Josh Chafetz, David E. Pozen

Faculty Scholarship

From the moment Donald Trump was elected President, critics have anguished over a breakdown in constitutional norms. History demonstrates, however, that constitutional norms are perpetually in flux. The principal source of instability is not that these unwritten rules can be destroyed by politicians who deny their legitimacy, their validity, or their value. Rather, the principal source of instability is that constitutional norms can be decomposed – dynamically interpreted and applied in ways that are held out as compliant but end up limiting their capacity to constrain the conduct of government officials.

This Article calls attention to that latent instability and, in ...


The Search For An Egalitarian First Amendment, Jeremy K. Kessler, David E. Pozen Jan 2018

The Search For An Egalitarian First Amendment, Jeremy K. Kessler, David E. Pozen

Faculty Scholarship

Over the past decade, the Roberts Court has handed down a series of rulings that demonstrate the degree to which the First Amendment can be used to thwart economic and social welfare regulation – generating widespread accusations that the Court has created a "new Lochner." This introduction to the Columbia Law Review's Symposium on Free Expression in an Age of Inequality takes up three questions raised by these developments: Why has First Amendment law become such a prominent site for struggles over socioeconomic inequality? Does the First Amendment tradition contain egalitarian elements that could be recovered? And what might a ...


Does Labour Law Need Philosophical Foundations? (Introduction), Hugh Collins, Gillian L. Lester, Virginia Mantouvalou Jan 2018

Does Labour Law Need Philosophical Foundations? (Introduction), Hugh Collins, Gillian L. Lester, Virginia Mantouvalou

Faculty Scholarship

This is the introductory chapter of the book Philosophical Foundations of Labour Law (Collins, Lester, Mantouvalou eds, OUP, 2018). It argues that labour law needs philosophical foundations and explains that careful reflection about underlying moral and political principles and values can serve to provide firm foundations and a clear sense of direction for labour law. At a time when many appear to doubt the value of labour laws and workers’ rights at all, the chapter suggests that it is necessary to reassert that the values and principles that provide the foundations for a system of labour law are not those ...


Policy Readiness For Offshore Carbon Dioxide Storage In The Northeast, Romany Webb, Michael Gerrard Jan 2017

Policy Readiness For Offshore Carbon Dioxide Storage In The Northeast, Romany Webb, Michael Gerrard

Faculty Scholarship

Reducing the amount of carbon dioxide in the atmosphere is vital to mitigate climate change. To date reduction efforts have primarily focused on minimizing the production of carbon dioxide during electricity generation, transport, and other activities. Going forward, to the extent that carbon dioxide continues to be produced, it will need to be captured before release. The captured carbon dioxide can then be utilized in some fashion, or it can be injected into underground geological formations – e.g., depleted oil and gas reserves, deep saline aquifers, or basalt rock reservoirs – where, it is hoped, it will remain permanently sequestered (“carbon ...


A Guide To The Guide To The Republican Better Way Plan, Alex Raskolnikov Jan 2017

A Guide To The Guide To The Republican Better Way Plan, Alex Raskolnikov

Faculty Scholarship

This special Issue of the Columbia Journal of Tax Law is bound to have both an immediate impact and a lasting significance. The immediate impact is assured because the sole focus of this Issue is the tax plan proposed by the Congressional Republicans as part of their broad reform agenda called A Better Way: Our Vision For A Confident America. As this Issue goes to print, the Better Way Plan (or the Plan for short) is being debated in the White House, on Capitol Hill, in the press, in academic circles, think tanks, the U.S. Chamber of Commerce, and ...


The Political Economy Of "Constitutional Political Economy", Jeremy K. Kessler Jan 2016

The Political Economy Of "Constitutional Political Economy", Jeremy K. Kessler

Faculty Scholarship

Joseph Fishkin and William Forbath’s book-in-progress, The Anti-Oligarchy Constitution, offers a radical alternative to the constitutional histories that emerged in the 1990s to defend the New Deal synthesis. Fishkin and Forbath’s new constitutional history promises to recast the New Deal as a contingent and incomplete resolution of a centuries-long struggle to achieve the political-economic conditions that the Constitution requires – “requires” in the double sense of “demands” and “depends upon.” This struggle is still ongoing and even accelerating, Fishkin and Forbath report, yet it has become increasingly “one-sided.” First, the post-WWII economic boom dissipated, taking with it much of ...


Governance Of Steel And Kryptonite Politics In Contemporary Public Education Reform, James S. Liebman, Christina C. Ma, Elizabeth R. Cruikshank Jan 2016

Governance Of Steel And Kryptonite Politics In Contemporary Public Education Reform, James S. Liebman, Christina C. Ma, Elizabeth R. Cruikshank

Faculty Scholarship

Public education in the United States has been crippled by a combination of entrenched bureaucratic governance and special-interest politics. To remedy these failings, school districts, states, and the federal Education Department have adopted education reforms characterized by rigorous outcome-focused standards and assessments and the empowering of public schools, charter or otherwise, to meet the standards. Despite promising initial results, however, the reforms have been widely criticized, including by the populations they most seek to help. To explain this paradox, this Article first tries to assimilate the new education reforms to the most frequently proposed alternatives to bureaucratic governance — marketization, managerialism ...


Politics And Agencies In The Administrative State: The U.S. Case, Peter L. Strauss Jan 2016

Politics And Agencies In The Administrative State: The U.S. Case, Peter L. Strauss

Faculty Scholarship

The pending American presidential election, culminating a period of extreme political partisanship in our national government generally, gives point to an essay on politics and agencies in the American regulatory state. In our two-party system, it has often been the case in recent times, including the last six years, that the President comes from one of our two major political parties and one or both houses of Congress are controlled by the other. All American agencies (including, in the American case, the so-called independent regulatory bodies) are associated with the President in the executive branch, yet dependent on the Senate ...


Impact Investing As A Form Of Lobbying And Its Corporate-Governance Effects, Andrzej Rapaczynski Jan 2016

Impact Investing As A Form Of Lobbying And Its Corporate-Governance Effects, Andrzej Rapaczynski

Faculty Scholarship

Impact investment is attractive to many because it seems to combine support for progressive causes with an apparent commitment to the principles of a market economy. In fact, however, a rational impact investor is not simply creating demand for certain types of corporate actions; he/she is attempting to use corporate governance mechanisms to influence fiduciary decisions of the management. The cost of this tactic for the health of the capitalist economy is potentially very considerable. The American capitalist system relies heavily on a relatively fragile corporate governance arrangement in which the agency problems of a modern corporation are minimized ...


The Political Economy Of "Constitutional Political Economy", Jeremy K. Kessler Jan 2016

The Political Economy Of "Constitutional Political Economy", Jeremy K. Kessler

Faculty Scholarship

Since the early 1990s, constitutional history has experienced a renaissance. This revival had many causes, but three stand out: the Rehnquist Court's attack on formerly sacrosanct features of the "New Deal agenda"; Reagan-Era reassessments of American political development by political scientists, historians, and historical sociologists; and the frustration of constitutional scholars with the inability of legal process theory or political philosophy to produce "authoritative constitutional principles." Spurred by legal crisis and this mix of disciplinary innovation and stagnation, law professors began to tell new stories about our constitutional heritage. They focused on the sources and significance of the New ...


"Death Tax" Politics, Michael J. Graetz Jan 2016

"Death Tax" Politics, Michael J. Graetz

Faculty Scholarship

In his Keynote Address “Death Tax” Politics at the October 2, 2015 Boston College Law School and American College of Trust and Estate Counsel Symposium, The Centennial of the Estate and Gift Tax: Perspectives and Recommendations, Michael Graetz describes the fight over the repeal of the estate tax and its current diminished state. Graetz argues that the political battle over the repeal of the estate tax reflects a fundamental challenge to our nation’s progressive tax system. This Address concludes that a revitalized estate tax is important for managing the national debt and reducing massive inequalities in wealth.


Agencies, Polarization, And The States, Gillian E. Metzger Jan 2015

Agencies, Polarization, And The States, Gillian E. Metzger

Faculty Scholarship

Political polarization is all the rage. Yet administrative agencies are strikingly absent from leading accounts of contemporary polarization. To the extent they appear, it is largely as acted-upon entities that bear the fallout from the congressional-presidential confrontations that polarization fuels, or as the tools of presidential unilateralism. This failure to incorporate administrative agencies into polarization accounts is a major omission. Agencies possess broad grants of preexisting authority that they can use to reshape governing policy and law, often at presidential instigation, thereby putting pressure on Congress to respond. In the process, they can construct new alliances and arrangements that have ...


Exclusion And Equality: How Exclusion From The Political Process Renders Religious Liberty Unequal, Philip A. Hamburger Jan 2015

Exclusion And Equality: How Exclusion From The Political Process Renders Religious Liberty Unequal, Philip A. Hamburger

Faculty Scholarship

Exclusion from the political process is a central question in American law. Thus far, however, it has not been recognized how religious Americans are excluded from the political process and what this means for religious equality.

Put simply, both administrative lawmaking and § 501 (c)(3) of the Internal Revenue Code substantially exclude religious Americans from the political process that produces laws. As a result, apparently equal laws are apt, in reality, to be unequal for religious Americans. Political exclusion threatens religious equality.

The primary practical conclusion concerns administrative law. It will be seen that this sort of "law" is made ...


Appointments, Innovation, And The Judicial-Political Divide, Gillian E. Metzger Jan 2015

Appointments, Innovation, And The Judicial-Political Divide, Gillian E. Metzger

Faculty Scholarship

The federal appointments process is having its proverbial day in the sun. The appointment and removal of federal officers figured centrally in the Supreme Court's two major recent separation-of-powers decisions, Free Enterprise Fund v. Public Company Accounting Oversight Board and National Labor Relations Board v. Noel Canning. The appointments process has featured even more prominently in the political sphere, figuring in a number of congressional-presidential confrontations. Such simultaneous top billing in the judicial and political spheres is hardly coincidental. After all, it was President Obama's use of the Recess Appointments Clause in response to pro forma sessions that ...


The ’73 Graft: Punishment, Political Economy, And The Genealogy Of Morals, Bernard E. Harcourt Jan 2015

The ’73 Graft: Punishment, Political Economy, And The Genealogy Of Morals, Bernard E. Harcourt

Faculty Scholarship

In this essay, I explore the place of a genealogy of morals within the context of a history of political economy. More specifically, I investigate the types of moralization – of criminals and delinquents, of the disorderly, but also of political economic systems, of workers and managers, of rules and rule-breaking – that are necessary and integral to making a population accept new styles of political and economic governance, especially the punitive institutions that accompany modern political economies in the contemporary period.

The marriage of political economy and a genealogy of morals: this essay explores how the moralization of certain groups of ...


Introduction: The Place Of Agencies In Polarized Government, Cynthia R. Farina, Gillian E. Metzger Jan 2015

Introduction: The Place Of Agencies In Polarized Government, Cynthia R. Farina, Gillian E. Metzger

Faculty Scholarship

This is one of two complementary essays for a symposium honoring the work of Peter L. Strauss. Also included is the joint introduction. (The second essay is Gillian Metzger, Agencies, Polarization, and the States.) These essays engage one of Strauss’s most germinal writings, “The Place of Agencies in Government: Separation of Powers and the Fourth Branch” to consider whether contemporary polarized politics spells the end of the intricate system of multi-branch control and accountability which, Strauss argued, legitimates administrative agencies. Political polarization has become a major focus in contemporary discussions on congressional activity and governance. The tone of these ...


Of Constituents And Contributors, Richard Briffault Jan 2015

Of Constituents And Contributors, Richard Briffault

Faculty Scholarship

In the stirring conclusion to his opinion in McCutcheon v. FEC, Chief Justice Roberts pointed to the close connection between campaign contributions and what he called the “political responsiveness at the heart of the democratic process.” Invoking Edmund Burke, the Chief Justice eloquently declaimed that “[c]onstituents have the right to support candidates who share their views and concerns. Representatives ... can be expected to be cognizant of and responsive to those concerns. Such responsiveness is key to the concept of self-governance.”

The Chief Justice’s emphasis on the representative-constituent relationship jarring, however, as McCutcheon addressed the effort of an individual ...


Appointments, Innovation, And The Judicial-Political Divide, Gillian E. Metzger Jan 2015

Appointments, Innovation, And The Judicial-Political Divide, Gillian E. Metzger

Faculty Scholarship

The federal appointments process is having its proverbial day in the sun. The appointment and removal of federal officers figured centrally in the Supreme Court’s two major recent separation-of powers decisions, Free Enterprise Fund v. Public Company Accounting Oversight Board and National Labor Relations Board v. Noel Canning. The appointments process has featured even more prominently in the political sphere, figuring in a number of congressional-presidential confrontations. Such simultaneous top billing in the judicial and political spheres is hardly coincidental. After all, it was President Obama’s use of the Recess Appointments Clause in response to pro forma sessions ...


Uncivil Obedience, Jessica Bulman-Pozen, David E. Pozen Jan 2015

Uncivil Obedience, Jessica Bulman-Pozen, David E. Pozen

Faculty Scholarship

Scholars and activists have long been interested in conscientious law-breaking as a means of dissent. The civil disobedient violates the law in a bid to highlight its illegitimacy and motivate reform. A less heralded form of social action, however, involves nearly the opposite approach. As a wide range of examples attest, dissenters may also seek to disrupt legal regimes through hyperbolic, literalistic, or otherwise unanticipated adherence to their formal rules.

This Article asks how to make sense of these more paradoxical protests, involving not explicit law-breaking but rather extreme law following. We seek to identify, elucidate, and call attention to ...