Law Commons^™

The "Inexorable Zero", Bert I. Huang

Faculty Scholarship

[F]ine tuning of the statistics could not have obscured the glaring absence of minority [long-distance] drivers .... [T]he company's inability to rebut the inference of discrimination came not from a misuse of statistics but from "the inexorable zero."

The Supreme Court first uttered the phrase "inexorable zero" a quarter-century ago in International Brotherhood of Teamsters v. United States, a landmark Title VII case. Ever since, this enigmatic name for a rule of inference has echoed across legal argument about segregation, discrimination, and affirmative action. Justice O'Connor, for instance, cited the "inexorable zero" in a major sex discrimination decision upholding an …

Requiem, Henry Paul Monaghan

Faculty Scholarship

Besides being brief, it is not apparent what one should say. No doubt due to my own upbringing, I cannot view this an occasion for a celebration of a life that ended just a handful of hours ago. Nor do I view this an occasion for a discussion of John's work. The New York Times provided a splendid account of that. I would add only that John received an honorary LL.D. from Yale six months ago. The opening sentence of the accompanying citation said it all: "Your work set the standard for constitutional law scholarship for our generation." I am …

Marbury V. Madison And European Union "Constitutional" Review, George A. Bermann

Faculty Scholarship

The U.S. Supreme Court's decision in Marbury v. Madison specifically raises the question of the legitimacy of a "horizontal" species of judicial review, that is, review by courts of the exercise of powers by the coordinate branches of government. The same question could be asked with respect to judicial review in the European Union. More particularly, how problematic or contestable has "horizontal" judicial review been within the European Union as a matter of principle? And, irrespective of its contestability, how have the courts of the European Union exercised "horizontal" review? We will find, however, that it is not the "horizontal" …

Scrubbing The Wash Sale Rules, David M. Schizer

Faculty Scholarship

Loss limitations are an ugly but inevitable feature of any realization-based income tax. In essence, because the system mismeasures gains, it also has to mismeasure losses. Otherwise, the "timing option" inherent in the realization rule would allow taxpayers to defer gains (thereby reducing the tax's present value) while accelerating losses (thereby preserving the deduction's present value). This "strategic trading" would erode the tax on risky positions, leading to inefficiencies as taxpayers developed a taste for risky positions, became "locked in" to appreciated positions, and sold loss positions they otherwise would keep. Distributional issues also would arise as the effective tax …

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.

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 …

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 …

Regulating Teenage Abortion In The United States: Politics And Policy, Carol Sanger

Faculty Scholarship

Thirty-four US states currently require pregnant minors either to notify their parents or get their consent before having a legal abortion. The Supreme Court has upheld the constitutionality of theses statutes provided that minors are also given an alternative mechanism for abortion approval that does not involve parents. The mechanism used is the 'judicial bypass hearing' at which minors persuade judges that they are mature and informed enough to make the abortion decision themselves. While most minors receive judicial approval, the hearings intrude into the most personal aspects of a young woman's life. The hearings, while formally civil in nature, …

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 …

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 …

Credit Card Policy In A Globalized World, Ronald J. Mann

Faculty Scholarship

This paper relies on data from countries around the world to present a comprehensive analysis of policy issues related to credit cards. The first part discusses the rise of credit cards and debit cards and how their uses differ from country to country. It closes with a framework for explaining why cards are more and less successful in different countries, focusing in large part on the ready availability of detailed consumer credit information. The second part considers the relation between credit card use and bankruptcy. Relying on a time series of data from the United States, Canada, Great Britain and …

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 …

Reading Clarence Thomas, Kendall Thomas

Faculty Scholarship

Several years ago, a special issue of The New Yorker entitled "Black in America" included an extraordinary profile of U.S. Supreme Court Justice Clarence Thomas. Authored by Jeffrey Rosen, the article begins with an account of Justice Thomas's interventions in two of the most important cases decided during the Court's previous term. In the first of these cases, Missouri v. Jenkins, the Court was called upon to define the constitutional scope and limits of the federal judicial power to address racial concentration in Kansas City's public schools through salary increases and the creation of magnet programs. In the second …

An Empirical Investigation Of Liquidation Choices Of Failed High Tech Firms, Ronald J. Mann

Faculty Scholarship

Perhaps it is merely a reflection of my interests, but to my mind, empirical research requires a certain risk-preferent boldness. I like projects that explore how and why particular businesses make important decisions. After I identify a topic, I typically try to gather as much qualitative and quantitative information about it as I can, with the expectation that when I have learned a great deal about the topic something interesting will emerge that relates in some important way to an ongoing academic debate. Those projects usually do not begin with a specific hypothesis to prove or disprove-often either answer will …

Gatekeeper Failure And Reform: The Challenge Of Fashioning Relevant Reforms, John C. Coffee Jr.

Faculty Scholarship

Securities markets have long employed "gatekeepers" – independent professionals who pledge their reputational capital – to protect the interests of dispersed investors who cannot easily take collective action. The clearest examples of such reputational intermediaries are auditors and securities analysts, who verify or assess corporate disclosures in order to advise investors in different ways. But during the late 1990s, these protections seemingly failed, and a unique concentration of financial scandals followed, all involving the common denominator .of accounting irregularities. What caused this sudden outburst of scandals, involving an apparent epidemic of accounting and related financial irregularities, that broke over the …

What Caused Enron? A Capsule Social And Economic History Of The 1990s, John C. Coffee Jr.

Faculty Scholarship

The sudden explosion of corporate accounting scandals and related financial irregularities that burst over the financial markets between late 2001 and the first half of 2002 – Enron, WorldCom, Tyco, Adelphia and others – raises an obvious question: Why now? What explains the concentration of financial scandals at this moment in time? Much commentary has rounded up the usual suspects and placed the blame on a decline in business morality, an increase in "infectious greed," or other similarly subjective trends that cannot be reliably measured. Although none of these possibilities can be dismissed out of hand, approaches that simply reason …

Incorporation By Law, Joseph Raz

Faculty Scholarship

My purpose here is to examine the question of how the law can be incorporated within morality and how the existence of the law can impinge on our moral rights and duties, a question (or questions) which is a central aspect of the broad question of the relation between law and morality. My conclusions cast doubts on the incorporation thesis, that is, the view that moral principles can become part of the law of the land by incorporation.

The Alien Tort Statute, Civil Society, And Corporate Responsibility, Sarah H. Cleveland

Faculty Scholarship

The topic of this panel is civil participation in the global trading system, with a particular focus on Doe v. Unocal Corp. and use of the Alien Tort Statute (ATS) to enforce fundamental human rights norms against multinational corporations. These comments will therefore attempt to locate Doe v. Unocal and other ATS litigation in the broader efforts of civil society to establish and maintain normative principles for corporate responsibility in the global trading regime. This comment first explains the role of ATS litigation in the broader civil society context and the contribution of ATS cases to the development and enforcement …

Against Separation, Philip A. Hamburger

Faculty Scholarship

In 1802, in a letter to the Danbury Baptist Association, Thomas Jefferson wrote that the First Amendment had the effect of "building a wall of separation between Church & State." As it happens, when Congress drafted the First Amendment in 1789, Jefferson was enjoying Paris. Nonetheless, his words about separation are often taken as an authoritative interpretation of the First Amendment's establishment clause. Indeed, in the 1947 Everson v. Board of Education decision, the Supreme Court quoted Jefferson's pronouncement to justify its conclusion that the First Amendment guarantees a separation of church and state. Not only the justices but …

The Option Element In Contracting, Avery W. Katz

Faculty Scholarship

Most contractual arrangements are either structured as options or include options as important elements. As a result, many of the major doctrines of contract law effectively operate to create or to set the terms of such options. For instance, it has long been recognized that a contract that is enforceable only through monetary liability operates in practice as an option, because as a legal matter the promisor retains the power either to perform or to breach and pay damages. Similarly, the doctrine of promissory estoppel, which attaches liability to precontractual statements in cases where they are reasonably relied upon, effectively …

Destabilization Rights: How Public Law Litigation Succeeds, Charles F. Sabel, William H. Simon

Faculty Scholarship

"Public law litigation" – civil rights advocacy seeking to restructure public agencies - has changed course over the last three decades. It has moved away from remedial intervention modeled on command-and-control bureaucracy toward a kind of intervention that can be called "experimentalist." Instead of top-down, fixed-rule regimes, the experimentalist approach emphasizes ongoing stakeholder negotiation, continuously revised performance measures, and transparency. Experimentalism is evident in all the principal areas of public law intervention – schools, mental health institutions, prisons, police, and public housing. This development has been substantially unanticipated and unnoticed by both advocates and critics of public law litigation. In …

Prescribing The Pill In Japan?, Curtis J. Milhaupt

Faculty Scholarship

Contrary to popular belief, corporate Japan is changing incrementally, to be sure, but changing nonetheless. One of the areas of greatest potential change is the legal and business environment for mergers and acquisitions ("M&A"), including hostile M&A. Recent amendments to Japan's Commercial Code in the areas of stock swaps and divestitures are helping to facilitate M&A transactions.¹ At the same time, the constellation of shareholders in Japanese firms is changing as cross-shareholding declines and foreign investment increases. M&A activity in Japan has increased significantly in recent years.²

Partnoy's Complaint: A Response, John C. Coffee Jr.

Faculty Scholarship

My article attempts to strike a balance and find a middle ground between the polar positions of those who favor strict liability (of whom Professor Partnoy is probably the most notable) and recent critics who believe it would produce market failure. Necessarily, those who take a middle position are exposed to fire from both sides. Although I admire Professor Partnoy's originality and incisive style, I do not believe that the market could easily survive his reforms and suspect that he has undervalued the hidden costs of strict liability. Deterrence is needed – but there can be too much of a …

On Gun Registration, The Nra, Adolf Hitler, And Nazi Gun Laws: Exploding The Gun Culture Wars (A Call To Historians), Bernard Harcourt

Faculty Scholarship

Say the words "gun registration" to many Americans – especially pro-gun Americans, including the 3.5 million-plus members of the National Rifle Association ("NRA") – and you are likely to hear about Adolf Hitler, Nazi gun laws, gun confiscation, and the Holocaust. More specifically, you are likely to hear that one of the first things that Hitler did when he seized power was to impose strict gun registration requirements that enabled him to identify gun owners and then to confiscate all guns, effectively disarming his opponents and paving the way for the genocide of the Jewish population. "German firearm laws and …

The Right To Claim Authorship In U.S. Copyright And Trademarks Law, Jane C. Ginsburg

Faculty Scholarship

If you inquired among the general public, “What does U.S. copyright law protect?” many people might start by grumbling that it overprotects piggish record companies. Calming slightly, they might next reply that copyright protects authors' rights and that among those is the right to be recognized as the author of the work. Indeed, few interests seem as fundamentally intuitive as that authorship credit should be given where credit is due. For example, in prelapsarian, pre-Napster days, the act of copyright infringement in which a youthful individual most likely engaged was probably plagiarism: there, lifting another author's text may have been …

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 …

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 …

Nine Justices, Ten Years: A Statistical Retrospective, Robert J. Jackson Jr., Thiruvendran Vignarajah

Faculty Scholarship

The 2003 Term marked an unprecedented milestone for the Supreme Court: for the first time in history, nine Justices celebrated a full decade presiding together over the nation's highest court.' The continuity of the current Court is especially striking given that, on average, one new Justice has been appointed approximately every two years since the Court's expansion to nine members in 1837.2 Although the Harvard Law Review has prepared statistical retrospectives in the past,3 the last decade presents a rare opportunity to study the Court free from the disruptions of intervening appointments.

Presented here is a review of the 823 …

More Is Less, Philip A. Hamburger

Faculty Scholarship

Is the First Amendment's right of free exercise of religion conditional upon government interests? Many eighteenth-century Americans said it was utterly unconditional. For example, James Madison and numerous contemporaries declared in 1785 that "the right of every man to exercise ['Religion'] ... is in its nature an unalienable right" and "therefore that in matters of Religion, no mans right is abridged by the institution of Civil Society." In contrast, during the past forty years, the United States Supreme Court has repeatedly conditioned the right of free exercise on compelling government interests. The Court not merely qualifies the practice of the …

Marbury V. Madison As The First Great Administrative Law Decision, Thomas W. Merrill

Faculty Scholarship

Marbury v. Madison is our foremost symbol of judicial power. Not only is the decision regarded as the root of judicial authority to strike down statutes as violating the Constitution; it is also taken to mean that "the federal judiciary is supreme in the exposition of the Constitution." In other words, Marbury has come to stand for the proposition that courts should enforce their own understanding of the meaning of the Constitution, without deferring or even paying much attention to the views of the other branches.

I will not in this essay engage in yet another analysis of Marbury's …