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Full-Text Articles in Law

Judges And Judgment: In Praise Of Instigators, Kathryn Judge Jan 2019

Judges And Judgment: In Praise Of Instigators, Kathryn Judge

Faculty Scholarship

This essay celebrates judicial instigators, and Judge Richard Posner as instigator. It embraces a view of the judicial system as a system, one that can best achieve its myriad aims only if there is some variety in its constituent parts. Having some judges, some of the time, willing to ask hard questions about what the law is and should be is critical to ensuring the law achieves its intended aims. This essay illustrates this point by weaving together a single case about mutual fund fees with personal observations accumulated over a year as a clerk to Judge Posner and Posner ...


The Data Standardization Challenge, Kathryn Judge, Richard Berner Jan 2019

The Data Standardization Challenge, Kathryn Judge, Richard Berner

Faculty Scholarship

Data standardization offers significant benefits for industry and regulators alike, suggesting that it should be easy. In practice, however, the process has been difficult and slow moving. Moving from an abstract incentive-based analysis to one focused on institutional detail reveals myriad frictions favoring the status quo despite foregone gains. This paper explores the benefits of and challenges confronting standardization, why it should be a top regulatory priority, and how to overcome some of the obstacles to implementation.

The paper also uses data standardization as a lens into the challenges that impede optimal financial regulation. Alongside capture and other common explanations ...


Being True To Trulia: Do Disclosure-Only Settlements In Merger Objection Lawsuits Harm Shareholders?, Eric L. Talley, Giuseppe Dari‐Mattiacci Jan 2019

Being True To Trulia: Do Disclosure-Only Settlements In Merger Objection Lawsuits Harm Shareholders?, Eric L. Talley, Giuseppe Dari‐Mattiacci

Faculty Scholarship

A significant debate within mergers and acquisitions law concerns the explosive popularity of the “merger objection lawsuit” (MOL), a shareholder action seeking to enjoin an announced deal on fiduciary duty grounds. MOLs blossomed during the Financial Crisis, becoming popularly associated with “shareholder shakedowns,” whereby quick-triggered plaintiff attorneys would file against – and then rapidly settle with – acquirers, typically on non-monetary terms containing modest added disclosures in exchange for blanket class releases and attorney fee awards. This practice unleashed a torrent of criticism from lawyers, commentators, academics, and (ultimately) judges, culminating in a doctrinal shift in Delaware law in the January 2016 ...


Reforming Institutions: The Judicial Function In Bankruptcy And Public Law Litigation, William H. Simon, Kathleen G. Noonan, Jonathan C. Lipson Jan 2019

Reforming Institutions: The Judicial Function In Bankruptcy And Public Law Litigation, William H. Simon, Kathleen G. Noonan, Jonathan C. Lipson

Faculty Scholarship

Public law litigation (PLL) is among the most important and controversial types of dispute that courts face. These civil class actions seek to reform public agencies such as police departments, prison systems, and child welfare agencies that have failed to meet basic statutory or constitutional obligations. They are controversial because critics assume that judicial intervention is categorically undemocratic or beyond judicial expertise.

This Article reveals flaws in these criticisms by comparing the judicial function in PLL to that in corporate bankruptcy, where the value and legitimacy of judicial intervention are better understood and more accepted. Our comparison shows that judicial ...


Domesticating Guidance, Peter L. Strauss Jan 2019

Domesticating Guidance, Peter L. Strauss

Faculty Scholarship

This essay, written for an occasion celebrating the scholarship of Prof. William Funk of Lewis & Clark Law School, builds in good part on his analyses of soft law documents – statements of general policy and interpretive rules – that today one generally finds discussed under the rubric “guidance.” These are agency texts of less formality than hard law regulations adopted under the procedures of 5 U.S.C. §553, that inform the public how an agency intends to administer its responsibilities, as a matter of policy or (what may seem just one instance of that) via the interpretation of its governing statutes. The APA is explicit that in adopting these texts, agencies are not required to use the notice-and-comment process ordinarily required for the adoption of regulations having the force of law; but it also signals that, like agency caselaw precedent, guidance may be relied upon to a private party’s disadvantage if it has been published or come to its actual notice. Guidance documents, revealing agency policy and perhaps showing the way to safe compliance, can structure the behavior of agency staff and be highly influential for the regulated; but they are not in themselves enforceable against actors in the outside world – hence, soft law. Typically, they are the product of agency staff, and do not ...


Death By Stereotype: Race, Ethnicity, And California’S Failure To Implement Furman’S Narrowing Requirement, Catherine M. Grosso, Jeffrey A. Fagan, Michael Laurence, David C. Baldus, George W. Woodworth, Richard Newell Jan 2019

Death By Stereotype: Race, Ethnicity, And California’S Failure To Implement Furman’S Narrowing Requirement, Catherine M. Grosso, Jeffrey A. Fagan, Michael Laurence, David C. Baldus, George W. Woodworth, Richard Newell

Faculty Scholarship

The influence of race on the administration of capital punishment in the United States had a major role in the United States Supreme Court’s 1972 decision in Furman v. Georgia to invalidate death penalty statutes across the United States. To avoid discriminatory and capricious application of capital punishment, the Supreme Court held that the Eighth Amendment requires legislatures to narrow the scope of capital offenses and ensure that only the most severe crimes are subjected to the ultimate punishment. This Article demonstrates the racial and ethnic dimension of California’s failure to implement this narrowing requirement. Our analysis uses ...


The End Of Intuition-Based High-Crime Areas, Ben Grunwald, Jeffrey A. Fagan Jan 2019

The End Of Intuition-Based High-Crime Areas, Ben Grunwald, Jeffrey A. Fagan

Faculty Scholarship

In 2000, the Supreme Court held in Illinois v. Wardlow that a suspect’s presence in a “high-crime area” is relevant in determining whether an officer has reasonable suspicion to conduct an investigative stop. Despite the importance of the decision, the Court provided no guidance about what that standard means, and over fifteen years later, we still have no idea how police officers understand and apply it in practice. This Article conducts the first empirical analysis of Wardlow by examining data on over two million investigative stops conducted by the New York Police Department from 2007 to 2012.

Our results ...


Geological Storage Of Co2 In Sub-Seafloor Basalt: The Carbonsafe Pre-Feasibility Study Offshore Washington State And British Columbia, David Goldberg, Lara Aston, Alain Bonneville, Inci Demirkanli, Curtis Evans, Andrew Fisher, Helena Garcia, Michael B. Gerrard, Martin Heesemann, Ken Hnottavange-Telleen, Emily Hsu, Cristina Malinverno, Kate Moran, Ah-Hyung Alissa Park, Martin Scherwath, Angela Slagle, Martin Stute, Tess Weathers, Romany M. Webb, Mark White, Signe White, Carbonsafe Cascadia Project Team Jan 2019

Geological Storage Of Co2 In Sub-Seafloor Basalt: The Carbonsafe Pre-Feasibility Study Offshore Washington State And British Columbia, David Goldberg, Lara Aston, Alain Bonneville, Inci Demirkanli, Curtis Evans, Andrew Fisher, Helena Garcia, Michael B. Gerrard, Martin Heesemann, Ken Hnottavange-Telleen, Emily Hsu, Cristina Malinverno, Kate Moran, Ah-Hyung Alissa Park, Martin Scherwath, Angela Slagle, Martin Stute, Tess Weathers, Romany M. Webb, Mark White, Signe White, Carbonsafe Cascadia Project Team

Faculty Scholarship

The CarbonSAFE Cascadia project team is conducting a pre-feasibility study to evaluate technical and nontechnical aspects of collecting and storing 50 MMT of CO2 in a safe, ocean basalt reservoir offshore from Washington State and British Columbia. Sub-seafloor basalts are very common on Earth and enable CO2 mineralization as a long-term storage mechanism, permanently sequestering the carbon in solid rock form. Our project goals include the evaluation of this reservoir as an industrial-scale CO2 storage complex, developing potential source/transport scenarios, conducting laboratory and modeling studies to determine the potential capacity of the reservoir, and completing an ...


Overcoming Impediments To Offshore Carbon Dioxide Storage: Legal Issues In The U.S. And Canada, Romany M. Webb, Michael B. Gerrard Jan 2019

Overcoming Impediments To Offshore Carbon Dioxide Storage: Legal Issues In The U.S. And Canada, Romany M. Webb, Michael B. Gerrard

Faculty Scholarship

Limiting future temperature increases and associated climate change requires immediate action to prevent additional carbon dioxide being released into the atmosphere and lower the existing atmospheric carbon dioxide load. According to the Intergovernmental Panel on Climate Change, to remain within the 2oC temperature threshold set in the Paris Agreement, emissions must be reduced to “net zero” by mid-century or shortly thereafter and then go “net negative.” This goal could be advanced through carbon capture and storage (CCS), which involves collecting carbon dioxide that would otherwise be released by power plants or similar facilities and injecting it into underground geologic formations ...


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 ...


A Skeptical View Of Information Fiduciaries, Lina Khan, David E. Pozen Jan 2019

A Skeptical View Of Information Fiduciaries, Lina Khan, David E. Pozen

Faculty Scholarship

The concept of “information fiduciaries” has surged to the forefront of debates on online-platform regulation. Developed by Professor Jack Balkin, the concept is meant to rebalance the relationship between ordinary individuals and the digital companies that accumulate, analyze, and sell their personal data for profit. Just as the law imposes special duties of care, confidentiality, and loyalty on doctors, lawyers, and accountants vis-à-vis their patients and clients, Balkin argues, so too should it impose special duties on corporations such as Facebook, Google, and Twitter vis-à-vis their end users. Over the past several years, this argument has garnered remarkably broad support ...


On Dancy’S Account Of Practical Reasoning, Joseph Raz Jan 2019

On Dancy’S Account Of Practical Reasoning, Joseph Raz

Faculty Scholarship

Dancy's main thesis is that the conclusion of practical reasoning is an action, and indeed that makes the reasoning practical. I trace his argument, suggest improvements to its superficial deficiencies, and conclude that it fails because Dancy misunderstands the nature of reasoning.


Normative Powers (Revised), Joseph Raz Jan 2019

Normative Powers (Revised), Joseph Raz

Faculty Scholarship

The paper provides an analysis of normative powers as the ability to change a normative condition, and distinguishes and analyse several kinds of such powers. The revision affects mainly the analysis of such types. The main theses of the paper concern the distinction between basic from chained powers and the account of the relations between the normative powers and the values which explain and justify their existence. It ends by showing the connection between the thesis that values depend on human nature and culture and the dependence of normative powers on justifying reasons.


The Global Dominance Of European Competition Law Over American Antitrust Law, Anu Bradford, Adam S. Chilton, Katerina Linos, Alex Weaver Jan 2019

The Global Dominance Of European Competition Law Over American Antitrust Law, Anu Bradford, Adam S. Chilton, Katerina Linos, Alex Weaver

Faculty Scholarship

The world’s biggest consumer markets – the European Union and the United States – have adopted different approaches to regulating competition. This has not only put the EU and US at odds in high-profile investigations of anticompetitive conduct, but also made them race to spread their regulatory models. Using a novel dataset of competition statutes, we investigate this race to influence the world’s regulatory landscape and find that the EU’s competition laws have been more widely emulated than the US’s competition laws. We then argue that both “push” and “pull” factors explain the appeal of the EU’s ...


Administrative States: Beyond Presidential Administration, Jessica Bulman-Pozen Jan 2019

Administrative States: Beyond Presidential Administration, Jessica Bulman-Pozen

Faculty Scholarship

Presidential administration is more entrenched and expansive than ever. Most significant policymaking comes from agency action rather than legislation. Courts endorse “the presence of Presidential power” in agency decisionmaking. Scholars give up on external checks and balances and take presidential direction as a starting point. Yet presidential administration is also quite fragile. Even as the Court embraces presidential control, it has been limiting the administrative domain over which the President presides. And when Presidents drive agency action in a polarized age, their policies are not only immediately contested but also readily reversed by their successors.

States complicate each piece of ...


Choice Theory: A Restatement, Michael A. Heller, Hanoch Dagan Jan 2019

Choice Theory: A Restatement, Michael A. Heller, Hanoch Dagan

Faculty Scholarship

This chapter restates choice theory, which advances a liberal approach to contract law. First, we refine the concept of autonomy for contract. Then we address range, limit, and floor, three principles that together justify contract law in a liberal society. The first concerns the state’s obligation to be proactive in facilitating the availability of a multiplicity of contract types. The second refers to the respect contract law owes to the autonomy of a party’s future self, that is, to the ability to re-write the story of one’s life. The final principle concerns relational justice, the baseline for ...


Manipulating Random Assignment: Evidence From Consumer Bankruptcies In The Nation's Largest Cities, Edward R. Morrison, Belisa Pang, Jonathon Zytnick Jan 2019

Manipulating Random Assignment: Evidence From Consumer Bankruptcies In The Nation's Largest Cities, Edward R. Morrison, Belisa Pang, Jonathon Zytnick

Faculty Scholarship

Random case assignment is thought to be an important feature of decision-making in federal courts because it helps guard against favoritism (actual or perceived) toward particular parties or types of cases. In bankruptcy courts, cases are randomly assigned to both judges and trustees. In Chapter 7 cases, for example, the trustee is a quasi-judicial actor, typically a private-sector lawyer, who has been selected to audit the debtor's finances, find and liquidate assets, and police compliance with the law. We study three major bankruptcy jurisdictions (covering Chicago, Los Angeles, and parts of New York) and find that the random-assignment process ...


Conceptualizing Legal Childhood In The Twenty-First Century, Elizabeth S. Scott, Clare Huntington Jan 2019

Conceptualizing Legal Childhood In The Twenty-First Century, Elizabeth S. Scott, Clare Huntington

Faculty Scholarship

The law governing children is complex, sometimes appearing almost incoherent. The relatively simple framework established in the Progressive era, in which parents had primary authority over children, subject to limited state oversight, has broken down over the past few decades. Lawmakers started granting children some adult rights and privileges, raising questions about their traditional status as vulnerable, dependent, and legally incompetent beings. As children emerged as legal persons, children’s rights advocates challenged the rationale for parental authority, contending that robust parental rights often harm children. And a wave of punitive reforms in response to juvenile crime in the 1990s ...


The Architecture Of Property, Thomas W. Merrill, Henry E. Smith Jan 2019

The Architecture Of Property, Thomas W. Merrill, Henry E. Smith

Faculty Scholarship

Avoiding the reduction of property to a bundle or rights or to the working out of a single master principle, the architectural theory of property sees property as an integrated system or structure anchored in certain unifying principles. Because our world is neither chaotic nor additiviely simple, property law and institutions must achieve their plural ends in a fashion that manages the inherent complexity of the interaction of valued resource attributes and human actions. In managing complexity, some of the law’s structures receive functional explanations and justifications, which can be different from the explanations and justifications that apply to ...


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.


Revising Boilerplate: A Comparison Of Private And Public Company Transactions, Stephen J. Choi, Robert E. Scott, G. Mitu Gulati Jan 2019

Revising Boilerplate: A Comparison Of Private And Public Company Transactions, Stephen J. Choi, Robert E. Scott, G. Mitu Gulati

Faculty Scholarship

The phenomenon of “sticky boilerplate” causing inefficient contract terms to persist exists across a variety of commercial contract types. One explanation for this failure to revise suboptimal terms is that the key agents on these transactions, including attorneys and investment bankers, are short sighted; their incentives are to get the deal done rather than ensure that they are using the best terms possible for their clients. Moreover, these agents face a first mover disadvantage that deters unilateral revisions to inefficient terms. If agency costs are indeed driving the stickiness phenomenon, we expect that the pace of revision will vary across ...


Richard Gardner: Scholar, Statesman, Columbian, Gillian L. Lester Jan 2019

Richard Gardner: Scholar, Statesman, Columbian, Gillian L. Lester

Faculty Scholarship

I am honored to pay tribute to Richard Gardner, who was truly one of Columbia Law School's greatest global citizens. He demonstrated so many of the qualities that make Columbia Law School unique, especially the influence that Columbia Law School has on the world. He was a brilliant statesman, international lawyer, and beloved professor. Over seven decades, he was a mentor to generations of students who are now leaders in law, foreign policy, and international affairs. Upon his retirement in 2012, the Law School hosted a two-day conference in his honor. Entitled "The Challenges We Face," the conference featured ...


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 ...


The Single-Subject Rule: A State Constitutional Dilemma, Richard Briffault Jan 2019

The Single-Subject Rule: A State Constitutional Dilemma, Richard Briffault

Faculty Scholarship

Critics of the proliferation of omnibus legislation in Congress have suggested that state constitutions offer a potential solution. Forty-three state constitutions include some sort of “single-subject” rule, that is, the requirement that each act of the legislature be limited to a single subject. Many of these provisions date back to the early and mid-nineteenth century, and, collectively, they have been the subject of literally thousands of court decisions. Nor is the rule a relic from a bygone era. In the last two decades, state courts have used single-subject rules to invalidate laws dealing with, inter alia, firearms regulation, abortion, tort ...


A Better Financing System? The Death – And Possible Rebirth – Of The Presidential Nomination Public Financing Program, Richard Briffault Jan 2019

A Better Financing System? The Death – And Possible Rebirth – Of The Presidential Nomination Public Financing Program, Richard Briffault

Faculty Scholarship

In 1974 Congress authorized public funding for presidential nomination campaigns. Public funding was crucial to Jimmy Carter’s nomination in 1976 and to Ronald Reagan’s nearly successful campaign the same year, and continued to be an important factor in presidential nomination contests for more than two decades after that. But no major candidate has used the program since 2004. Due the program’s built-in limitations, changes in the nomination process, and campaign finance developments, the program is completely irrelevant today.

It has been argued that the program isn’t really needed. Although one argument for public funding is that ...


Constitutional Law And The Presidential Nomination Process, Richard Briffault Jan 2019

Constitutional Law And The Presidential Nomination Process, Richard Briffault

Faculty Scholarship

The Constitution says nothing about the presidential nominating process and has had little direct role in its evolution from congressional caucuses to party national conventions to our current primary-dominated system. Yet, constitutional law is a factor in empowering and constraining the principal actors in the nomination process and in shaping the framework for potential future changes.

The constitutional law of the presidential nomination process operates along two axes: government-party, and state-national. The government-party dimension focuses on the tension between the states and the federal government in writing the rules for and administering the electoral process – which may include the primary ...


Deterrence Theory: Key Findings And Challenges, Alex Raskolnikov Jan 2019

Deterrence Theory: Key Findings And Challenges, Alex Raskolnikov

Faculty Scholarship

This Chapter prepared for the Cambridge Handbook of Compliance reviews the key findings of the optimal deterrence theory and discusses the remaining challenges. Some of these challenges reflect current modeling choices and limitations. These include the treatment of the offender’s gains in the social welfare function; the design of the damages multiplier in a realistic, multi-period framework; the effects of different types of uncertainty on behavior; and the study of optional, imperfectly-enforced, threshold-based regimes – that is, regimes that reflect the most common real-world regulatory setting. Other challenges arise because several key regulatory features and enforcement outcomes are inconsistent with ...


Will Artificial Intelligence Eat The Law? The Rise Of Hybrid Social-Ordering Systems, Tim Wu Jan 2019

Will Artificial Intelligence Eat The Law? The Rise Of Hybrid Social-Ordering Systems, Tim Wu

Faculty Scholarship

Software has partially or fully displaced many former human activities, such as catching speeders or flying airplanes, and proven itself able to surpass humans in certain contests, like Chess and Jeopardy. What are the prospects for the displacement of human courts as the centerpiece of legal decision-making?

Based on the case study of hate speech control on major tech platforms, particularly on Twitter and Facebook, this Essay suggests displacement of human courts remains a distant prospect, but suggests that hybrid machine – human systems are the predictable future of legal adjudication, and that there lies some hope in that combination, if ...


Some Issues On The Law Of Direct Damages (Us And Uk), Victor P. Goldberg Jan 2019

Some Issues On The Law Of Direct Damages (Us And Uk), Victor P. Goldberg

Faculty Scholarship

When a contract is breached both US and UK law provide that the non-breaching party should be made whole. I propose a general principle that should guide implementation – the contract is an asset and the problem is one of determining the change in value of that asset at the time of the breach. In the simplest case, the breach of a contract for the sale of a commodity in a thick market, the change in the value of the asset is simply the contract-market differential; the contract-as-asset notion doesn’t add much. It becomes more useful as we move away ...


Law's Halo And The Moral Machine, Bert I. Huang Jan 2019

Law's Halo And The Moral Machine, Bert I. Huang

Faculty Scholarship

How will we assess the morality of decisions made by artificial intelli­gence – and will our judgments be swayed by what the law says? Focusing on a moral dilemma in which a driverless car chooses to sacrifice its passenger to save more people, this study offers evidence that our moral intuitions can be influenced by the presence of the law.