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Making Corporate Governance Codes More Effective: A Response To The European Commission's Action Plan Of December 2012, Peter Böckli, Paul L. Davies, Eilis Ferran, Guido Ferrarini, José M. Garrido Garcia, Klaus J. Hopt, Alain Pietrancosta, Katharina Pistor, Markus Roth, Rolf Skog, Stanislaw Soltysinski, Jaap W. Winter, Eddy Wymeersch Jan 2013

Making Corporate Governance Codes More Effective: A Response To The European Commission's Action Plan Of December 2012, Peter Böckli, Paul L. Davies, Eilis Ferran, Guido Ferrarini, José M. Garrido Garcia, Klaus J. Hopt, Alain Pietrancosta, Katharina Pistor, Markus Roth, Rolf Skog, Stanislaw Soltysinski, Jaap W. Winter, Eddy Wymeersch

Faculty Scholarship

This paper contains the European Company Law Experts' response to one of the main issues raised in the European Commission’s Action Plan of 12 December 2012, namely how to make corporate governance codes more effective. The concept of “codes’ effectiveness” has two meanings: effectiveness of the comply-explain mechanism (disclosure effectiveness) and level of adoption of the codes’ recommendations themselves (substantive effectiveness). The ECLE believes that it is of crucial importance to keep the advantages of regulation by codes while finding adequate improvements of the quality of the reports and the explanations. The relationship between the content of corporate governance ...


Meas In The Wto: Silence Speaks Volumes, Henrik Horn, Petros C. Mavroidis Jan 2013

Meas In The Wto: Silence Speaks Volumes, Henrik Horn, Petros C. Mavroidis

Faculty Scholarship

This study contributes to the debate concerning the appropriate role of multilateral environmental agreements (MEAs) in WTO law, and in particular, in WTO dispute settlement. The distinguishing feature of the study is that it seeks to address the relationship between MEAs and WTO law in light of the reason why the parties have chosen to separate their obligations into two bodies of law without providing an explicit nexus between them. The basic conclusion is that legislators’ silence concerning this relationship should speak volumes to WTO adjudicating bodies: MEAs should not be automatically understood as imposing legally binding obligations on WTO ...


Brief Of Amici Curiae Professors Nan D. Hunter, Et Al., Addressing The Merits In Support Of Respondents, Nan D. Hunter, Suzanne B. Goldberg Jan 2013

Brief Of Amici Curiae Professors Nan D. Hunter, Et Al., Addressing The Merits In Support Of Respondents, Nan D. Hunter, Suzanne B. Goldberg

Faculty Scholarship

In this amicus brief filed in United States v. Windsor, pending before the Supreme Court, amici constitutional law professors argue that all classifications that carry the indicia of invidiousness should trigger a more searching inquiry than the traditional rational basis test under the Equal Protection Clause would suggest. Classifications that already receive heightened scrutiny, such as race or sex, fit easily into this approach. But the Court’s equal protection jurisprudence has become muddied in a series of cases in which it says rational basis review, but appears to do a more rigorous review. Sexual orientation classifications seemingly were analyzed ...


Copyright 1992-2012: The Most Significant Development, Jane C. Ginsburg Jan 2013

Copyright 1992-2012: The Most Significant Development, Jane C. Ginsburg

Faculty Scholarship

On the occasion of the twentieth anniversary of the Fordham Intellectual Property Law & Policy Conference, its organizer, Professor Hugh Hansen, planned a session on “U.S. Copyright Law: Where Has It Been? Where Is It Going?” and asked me to look back over the twenty years since the conference’s inception in order to identify the most important development in copyright during that period. Of course, the obvious answer is “the Internet,” or “digital media,” whose effect on copyright law has been pervasive. I want to propose a less obvious response, but first acknowledge that digital media and communications have ...


Self-Defensive Force Against Cyber Attacks: Legal, Strategic And Political Dimensions, Matthew C. Waxman Jan 2013

Self-Defensive Force Against Cyber Attacks: Legal, Strategic And Political Dimensions, Matthew C. Waxman

Faculty Scholarship

When does a cyber-attack (or threat of cyber-attack) give rise to a right of self-defense – including armed self-defense – and when should it? This essay examines these questions through three lenses: (1) a legal perspective, to examine the range of reasonable interpretations of self-defense rights as applied to cyber-attacks, and the relative merits of interpretations within that range; (2) a strategic perspective, to link a purported right of armed self-defense to long-term policy interests including security and stability; and (3) a political perspective, to consider the situational context in which government decision-makers will face these issues and predictive judgments about the ...


Courts Uniformly Support Climate Science And Scientists, Michael Gerrard Jan 2013

Courts Uniformly Support Climate Science And Scientists, Michael Gerrard

Faculty Scholarship

Viewers of certain television networks, readers of certain newspapers, and anyone visiting Capitol Hill would come away with the impression that there are serious questions about whether climate change is occurring and, if it is, whether it is mostly caused by human activity. One place where there are few such questions is the courts. In fact it appears that (with one lone exception in a dissent) not a single U.S. judge has expressed any skepticism, in a written opinion or dissent, about the science underlying the concern over climate change. To the contrary, the courts have uniformly upheld this ...


Regulating Imports Into Rggi: Toward A Legal, Workable Solution, Shelley Welton, Michael Gerrard, Jason Munster Jan 2013

Regulating Imports Into Rggi: Toward A Legal, Workable Solution, Shelley Welton, Michael Gerrard, Jason Munster

Faculty Scholarship

This white paper evaluates the legal workability and constitutionality of what is frequently considered the most feasible mechanism for RGGI to use in regulating imports: an obligation on RGGI “load serving entities” (LSEs) – those companies responsible for supplying electricity to end-use customers – to purchase allowances to account for the emissions associated with the electricity they sell that is imported. Ultimately, although there are many design complexities yet to be worked out, we find that an LSE-centered approach could present a viable pathway forward for RGGI states’ regulation of imports. It is likely to create long-term price signals about the value ...


The Moral Significance Of Economic Life, Andrzej Rapaczynski Jan 2013

The Moral Significance Of Economic Life, Andrzej Rapaczynski

Faculty Scholarship

Much of the modern perception of the role of economic production in human life – whether on the Left or on the Right of the political spectrum – views it as an inferior, instrumental activity oriented toward self-preservation, self-interest, or profit, and thus as essentially distinct from the truly human action concerned with moral values, justice, and various forms of self-fulfillment. This widely shared worldview is rooted, on the one hand, in the Aristotelian tradition that sees labor as a badge of slavery, and freedom as lying in the domain of politics and pure (not technical) knowledge, and, on the other hand ...


The Organizational Premises Of Administrative Law, William H. Simon Jan 2013

The Organizational Premises Of Administrative Law, William H. Simon

Faculty Scholarship

Administrative law is out of touch with forms of public administration developed since the Progressive and New Deal eras. It is strongly influenced by bureaucratic conceptions of administration that see (1) legitimacy in terms of prior authorization; (2) organization as a balance of stable rules and unaccountable discretion, and (3) error detection as a reactive, complaint-driven process. Yet, many public programs developed since the 1970s strive to establish post-bureaucratic or performance-based forms of administration that view (1) legitimacy in terms of exposure to public oversight; (2) administration as a matter of comprehensive but flexible planning, and (3) error detection as ...


Three Discount Windows, Kathryn Judge Jan 2013

Three Discount Windows, Kathryn Judge

Faculty Scholarship

It is widely assumed that the Federal Reserve is the lender of last resort in the United States and that the Fed’s discount window is the primary mechanism through which it fulfills this role. Yet, when banks faced liquidity constraints during the 2007–2009 financial crisis (the Crisis), the discount window played a relatively small role in providing banks much needed liquidity. This is not because banks forewent government backed liquidity; rather, they sought it elsewhere. First, they increased their reliance on collateralized loans, known as advances, from the Federal Home Loan Bank system, a little known government sponsored ...


Defining And Punishing Offenses Under Treaties, Sarah H. Cleveland, William S. Dodge Jan 2013

Defining And Punishing Offenses Under Treaties, Sarah H. Cleveland, William S. Dodge

Faculty Scholarship

One of the principal aims of the U.S. Constitution was to give the federal government authority to comply with its international legal commitments. The scope of Congress’s constitutional authority to implement treaties has recently received particular attention. In Bond v. United States, the Court avoided the constitutional questions by construing a statute to respect federalism, but these questions are unlikely to go away. This Article contributes to the ongoing debate by identifying the Offenses Clause as an additional source of Congress’s constitutional authority to implement certain treaty commitments. Past scholarship has assumed that the Article I power ...


Article Iii Double-Dipping: Proposition 8'S Proponents, Blag, And The Government's Interest, Suzanne B. Goldberg Jan 2013

Article Iii Double-Dipping: Proposition 8'S Proponents, Blag, And The Government's Interest, Suzanne B. Goldberg

Faculty Scholarship

Two fundamental standing problems plague Proposition 8’s proponents and the Bipartisan Legal Advisory Group (BLAG) in the marriage cases currently before the U.S. Supreme Court. First is the Article III double-dipping problem, to which this Essay’s title refers. This problem arises because those parties purport to derive their Article III standing by asserting the governments’ interest in defending the challenged marriage laws. Yet the governments in both cases, via their chief legal officers, have taken the position that excluding same-sex couples from marriage is unconstitutional. To permit this Janus-faced commitment to both sides of the cases would ...


Assessing The Optimism Of Payday Loan Borrowers, Ronald J. Mann Jan 2013

Assessing The Optimism Of Payday Loan Borrowers, Ronald J. Mann

Faculty Scholarship

This essay compares the results from a survey administered to payday loan borrowers at the time of their loans to subsequent borrowing and repayment behavior. It thus presents the first direct evidence of the accuracy of payday loan borrowers’ understanding of how the product will be used. The data show, among other things, that about 60% of borrowers accurately predict how long it will take them finally to repay their payday loans. The evidence directly contradicts the oft-stated view that substantially all extended use of payday loans is the product of lender misrepresentation or borrower self-deception about how the product ...


Exceptional Authorship: The Role Of Copyright Exceptions In Promoting Creativity, Jane C. Ginsburg Jan 2013

Exceptional Authorship: The Role Of Copyright Exceptions In Promoting Creativity, Jane C. Ginsburg

Faculty Scholarship

It has been suggested that today’s authors need copyright exceptions and limitations more than they need exclusive rights. I will first test the proposition by examining what one might call authorship-oriented exceptions, from ‘fair abridgement’ in early English cases to the original meaning of ‘transformative use’ in the U.S. fair use doctrine. All of these exceptions trained on the promotion of creativity by allowing authors to make reasonable borrowings from old works in the creation of new ones. I conclude that both today’s assemblers of ‘remixes’ and yesterday’s traditional creators of works of entertainment or scholarship ...


Law And Ethics For Autonomous Weapon Systems: Why A Ban Won't Work And How The Laws Of War Can, Kenneth Anderson, Matthew C. Waxman Jan 2013

Law And Ethics For Autonomous Weapon Systems: Why A Ban Won't Work And How The Laws Of War Can, Kenneth Anderson, Matthew C. Waxman

Faculty Scholarship

Public debate is heating up over the future development of autonomous weapon systems. Some concerned critics portray that future, often invoking science-fiction imagery, as a plain choice between a world in which those systems are banned outright and a world of legal void and ethical collapse on the battlefield. Yet an outright ban on autonomous weapon systems, even if it could be made effective, trades whatever risks autonomous weapon systems might pose in war for the real, if less visible, risk of failing to develop forms of automation that might make the use of force more precise and less harmful ...


Miller V. Alabama And The (Past And) Future Of Juvenile Justice Policy, Elizabeth S. Scott Jan 2013

Miller V. Alabama And The (Past And) Future Of Juvenile Justice Policy, Elizabeth S. Scott

Faculty Scholarship

This essay was the keynote address for a symposium on Miller v Alabama, the 2012 Supreme Court opinion holding unconstitutional under the Eighth Amendment a statute imposing a mandatory sentence of life without parole for juveniles convicted of homicide. The essay argues that Miller embodies a way of thinking about juvenile crime that has taken hold in the early 21st century – an approach that emphasizes the importance for legal policy of developmental differences between juveniles and adults. This emerging trend contrasts sharply with the regulatory approach of the 1990s when moral panics over juvenile crime fueled punitive law reforms that ...


Compulsory Sexuality, Elizabeth F. Emens Jan 2013

Compulsory Sexuality, Elizabeth F. Emens

Faculty Scholarship

Asexuality is an emerging identity category that challenges the common assumption that everyone is defined by some type of sexual attraction. Asexuals — those who report feeling no sexual attraction to others — constitute one percent of the population, according to one prominent study. In recent years, some individuals have begun to identify as asexual and to connect around their experiences interacting with a sexual society. Asexuality has also become a protected classification under the antidiscrimination law of one state and several localities, but legal scholarship has thus far neglected the subject. This Article introduces asexuality to the legal literature as a ...


Framing Disability, Elizabeth F. Emens Jan 2013

Framing Disability, Elizabeth F. Emens

Faculty Scholarship

Mainstream attitudes toward disability lag behind U.S. law. This tension between attitudes and law reflects a wider gap between the ideas about disability pervasive in mainstream society — what this Article calls the "outside" view — and the ideas about disability common within the disability community — what this Article calls the "inside" view. The outside perspective tends to misunderstand and mischaracterize aspects of the experience, theory, and law of disability.

The law can help to close this gap in attitudes by changing the conditions in which attitudes are formed or reinforced. Thus, this Article proposes using framing rules to target the ...


From Hypatia To Victor Hugo To Larry And Sergey: ‘All The World's Knowledge’ And Universal Authors’ Rights – The 2012 British Academy Law Lecture, Jane C. Ginsburg Jan 2013

From Hypatia To Victor Hugo To Larry And Sergey: ‘All The World's Knowledge’ And Universal Authors’ Rights – The 2012 British Academy Law Lecture, Jane C. Ginsburg

Faculty Scholarship

Access to ‘all the world’s knowledge’ is an ancient aspiration; a less venerable, but equally vigorous, universalism strives for the borderless protection of authors’ rights. Late 19th-century law and politics brought us copyright universalism; 21st-century technology may bring us the universal digital library. But how can ‘all the world’s knowledge’ be delivered, on demand, to users anywhere in the world (with Internet access), if the copyrights of the creators and publishers of many of those works are supposed to be enforceable almost everywhere in the world? Does it follow that the universal digital library of the near future ...


Gender Politics And Child Custody: The Puzzling Persistence Of The Best Interest Standard, Elizabeth S. Scott, Robert Emery Jan 2013

Gender Politics And Child Custody: The Puzzling Persistence Of The Best Interest Standard, Elizabeth S. Scott, Robert Emery

Faculty Scholarship

The best interest of the child standard has been widely criticized by scholars for its vagueness and indeterminacy, and yet for forty years it has been the prevailing legal rule for resolving custody disputes. This article confirms the deficiencies of the standard, focusing particularly on the daunting verifiability problems courts face in evaluating claims. Yet, despite the substantial risk of erroneous or arbitrary custody decisions, the best interest standard remains firmly entrenched, with the apparent approval of policymakers and courts. We explain this puzzle as the product of two interrelated factors. First, a protracted gender war has embroiled advocates for ...


The Republic Of Choosing: A Behaviorist Goes To Washington, William H. Simon Jan 2013

The Republic Of Choosing: A Behaviorist Goes To Washington, William H. Simon

Faculty Scholarship

Cass Sunstein’s book Simpler recounts the author’s efforts during his tenure in the first Obama administration to apply the policy tools he helped derive from behavioral economics. In this review, I suggest that, while Sunstein reports some notable achievements, he exaggerates the utility of the behaviorist toolkit. Behaviorist-inspired interventions are marginal to most of the largest policy problems, and they played little role in the Obama administration’s most important initiatives. The book also reflects a misguided political strategy.


Administrative Constitutionalism, Gillian E. Metzger Jan 2013

Administrative Constitutionalism, Gillian E. Metzger

Faculty Scholarship

Administrative constitutionalism is increasingly becoming a central subject of study. Administrative constitutionalism includes not just the application of established constitutional requirements by administrative agencies, but in addition the elaboration of new constitutional understandings by administrative actors and the construction of the administrative state. This attention to administrative constitutionalism is overdue, as it represents a main mechanism by which constitutional meaning is elaborated and implemented today. But recently offered examples of administrative constitutionalism are notably divergent, suggesting a need for some exegesis of administrative constitutionalism’s different dimensions.

Identifying administrative constitutionalism’s various forms highlights the challenges confronting it as a ...


The Collapse Of The Harm Principle Redux: On Same-Sex Marriage, The Supreme Court's Opinion In United States V. Windsor, John Stuart Mill's Essay On Liberty (1859), And H. L. A. Hart's Modern Harm Principle, Bernard E. Harcourt Jan 2013

The Collapse Of The Harm Principle Redux: On Same-Sex Marriage, The Supreme Court's Opinion In United States V. Windsor, John Stuart Mill's Essay On Liberty (1859), And H. L. A. Hart's Modern Harm Principle, Bernard E. Harcourt

Faculty Scholarship

In an article published in 1999, titled The Collapse of the Harm Principle, I argued that the harm principle, originally articulated in John Stuart Mill’s essay On Liberty (1859), had collapsed under the weight of its own success and no longer serves, today, as a limiting principle on the legal enforcement of morality. Several readers raised forceful questions about the relationship between Mill’s original essay and the harm principle, as well as about the continuing vitality of Mill’s argument. In this article, I return to my original argument to draw an important distinction and clarify a central ...


The Pre-Session Recess, Peter L. Strauss Jan 2013

The Pre-Session Recess, Peter L. Strauss

Faculty Scholarship

In the brief remarks following, I do not address the Burkean argument that practice has established the permissibility of recess appointments during the week-or-more adjournments of Congress that modern transportation modalities permit. We can perhaps let President Eisenhower’s recess appointments of Chief Justice Warren, Justice Brennan, and Justice Stewart stand witness to that understanding. Rather, I want to suggest flaws in the originalist analysis used by the Canning court and in the Senate’s ruse of meeting every three days over the winter period of 2011-12 that many take to place the January 4, 2012 recess appointments President Obama ...


The Power To Threaten War, Matthew C. Waxman Jan 2013

The Power To Threaten War, Matthew C. Waxman

Faculty Scholarship

Existing legal scholarship about constitutional war powers focuses overwhelmingly on the President's power to initiate military operations abroad and the extent to which that power is constrained by Congress. It ignores the allocation of legal power to threaten military force or war, even though threats – to coerce or deter enemies and to reassure allies – is one of the most important ways in which the United States government wields its military might. This paper fills that scholarly void, and draws on recent political science and historical scholarship to construct a richer and more accurate account of the modern presidency's ...


The Case For An Unbiased Takeover Law (With An Application To The European Union), Luca Enriques, Ronald J. Gilson, Alessio M. Pacces Jan 2013

The Case For An Unbiased Takeover Law (With An Application To The European Union), Luca Enriques, Ronald J. Gilson, Alessio M. Pacces

Faculty Scholarship

Takeover regulation should neither hamper nor promote takeovers, but instead allow individual companies to decide the contestability of their control. Based on this premise, we advocate a takeover law exclusively made of default and menu rules supporting an effective choice of the takeover regime at the company level. For reasons of political economy bearing on the reform process, we argue that different default rules should apply to newly public companies and companies that are already public when the new regime is introduced. The first group should be governed by default rules crafted against the interest of management and of controlling ...


"With Untired Spirits And Formal Constancy": Berne-Compatibility Of Formal Declaratory Measures To Enhance Title-Searching, Jane C. Ginsburg Jan 2013

"With Untired Spirits And Formal Constancy": Berne-Compatibility Of Formal Declaratory Measures To Enhance Title-Searching, Jane C. Ginsburg

Faculty Scholarship

Formalities are back in fashion. Their acolytes fall into two camps, reflecting their different objectives. For formalities, which we shall define as conditions on the existence or enforcement of copyright, can divest authors of their rights, or instead enhance authors’ exploitation of their works by alerting their audiences to the authors’ claims. For one camp, formalities’ confiscatory consequences, once perceived as barbaric, are to be celebrated. A second camp enlists formalities to populate not the public domain, but the public record. Notice, registration and recordation, as declaratory measures, inform the public of the author’s claims and, by facilitating rights-clearance ...


In Search Of Skidmore, Peter L. Strauss Jan 2013

In Search Of Skidmore, Peter L. Strauss

Faculty Scholarship

In a coup en banc, Justice Scalia appears to have converted his lonely and furious dissent from United States v. Mead Corp. into the eight to one majority holding in City of Arlington v. FCC. Much will doubtless be said about this opinion, as about all Chevron matters generally, but to note here is that 186 years of precedent for the proposition that judges interpreting statutes involving agency authority should give substantial weight to agency views have simply disappeared. Whether agencies have authority to act, a legal question, is either all Chevron (the majority) or no deference at all (Chief ...


Beccaria's On Crimes And Punishments: A Mirror On The History Of The Foundations Of Modern Criminal Law, Bernard E. Harcourt Jan 2013

Beccaria's On Crimes And Punishments: A Mirror On The History Of The Foundations Of Modern Criminal Law, Bernard E. Harcourt

Faculty Scholarship

Beccaria’s treatise "On Crimes and Punishments" (1764) has become a placeholder for the classical school of thought in criminology, for deterrence-based public policy, for death penalty abolitionism, and for liberal ideals of legality and the rule of law. A source of inspiration for Bentham and Blackstone, an object of praise for Voltaire and the Philosophies, a target of pointed critiques by Kant and Hegel, the subject of a genealogy by Foucault, the object of derision by the Physiocrats, rehabilitated and appropriated by the Chicago School of law and economics – these ricochets and reflections on Beccaria’s treatise reveal multiple ...


Idiosyncratic Risk During Economic Downturns: Implications For The Use Of Event Studies In Securities Litigation, Edward G. Fox, Merritt B. Fox, Ronald J. Gilson Jan 2013

Idiosyncratic Risk During Economic Downturns: Implications For The Use Of Event Studies In Securities Litigation, Edward G. Fox, Merritt B. Fox, Ronald J. Gilson

Faculty Scholarship

We reported in a recent paper that during the 2008-09 financial crisis, for the average firm, idiosyncratic risk, as measured by variance, increased by five-fold. This finding is important for securities litigation because idiosyncratic risk plays a central role in event study methodology. Event studies are commonly used in securities litigation to determine materiality and loss causation. Many bits of news affect an issuer’s share price at the time of a corporate disclosure that is the subject of litigation. Because of this, even if an issuer’s market–adjusted price changes at the time of the disclosure, one cannot ...