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Navigating Scholarship Discovery, Research Impact, And Open Access, Carol A. Watson, Jean-Gabriel Bankier, Gregg Gordon Nov 2018

Navigating Scholarship Discovery, Research Impact, And Open Access, Carol A. Watson, Jean-Gabriel Bankier, Gregg Gordon

Presentations

The leadership teams of bepress and SSRN will present the findings of an integration pilot conducted in partnership with Columbia Law School’s Arthur W. Diamond Law Library, the University of Georgia School of Law’s Alexander Campbell King Law Library, and Southern Methodist University’s Cox School of Business. Expanding the reach of open access scholarship is central to the mission of both bepress and SSRN. However for many institutions, the separation of the two platforms had created barriers to faculty engagement and the building of successful open access initiatives. With both companies now part of the Elsevier portfolio ...


Bepress & Ssrn Pilot Presentation, Carol A. Watson, Thomas J. Striepe Jul 2018

Bepress & Ssrn Pilot Presentation, Carol A. Watson, Thomas J. Striepe

Presentations

A panel discussion announcing and sharing information about the joint pilot project exploring the integration between bepress and SSRN platforms launched in March 2018.


Rethinking Digital Repositories And The Future Of Open Access, Margaret Schilt, Karen Shephard, Carol A. Watson Jan 2018

Rethinking Digital Repositories And The Future Of Open Access, Margaret Schilt, Karen Shephard, Carol A. Watson

Scholarly Works

Over the last two years, changes in the legal publishing arena involving digital repository platforms have raised concerns about the future of open access. This article reviews the current status of the various repository platforms and how they impact legal scholarship. The article goes on to analyze the areas that law libraries should focus on in platform selection.


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 ...


What's So Great About The Declare War Clause?, Matthew C. Waxman Jan 2018

What's So Great About The Declare War Clause?, Matthew C. Waxman

Faculty Scholarship

I have long believed two things about constitutional war powers, which my reading of Noah Feldman’s “The Three Lives of James Madison” largely confirmed. First, James Madison was brilliant and prescient about many things, but the strategy and politics of war were not among them. Second, modern constitutional critics of an imperial presidency place too much weight on the declare war clause – and especially Madison’s statements about it. Madison, indeed, worried deeply about unchecked presidential war powers. But Feldman’s book shows that Madison did not emphasize the same risks and checks so often ascribed to him today ...


Economic Democracy And Enterprise Form In Finance, William H. Simon Jan 2018

Economic Democracy And Enterprise Form In Finance, William H. Simon

Faculty Scholarship

This comment – a contribution to a project on “democratizing finance” – considers the relative advantages of alternative enterprise forms from the point of view of public accountability. It compares the business corporation to the state agency or authority, the cooperative, the state corporation, and the charitable nonprofit. These forms can be distinguished in terms of whether they aspire to enhance general electoral democracy or stakeholder democracy and in terms of whether their democratic controls operate directly or indirectly. I suggest that the more indirect democratic forms may be more promising than the more direct ones. I also argue that the project ...


Fiscal Pressures And Discriminatory Policing: Evidence From Traffic Stops In Missouri, Allison P. Harris, Elliott Ash, Jeffrey A. Fagan Jan 2018

Fiscal Pressures And Discriminatory Policing: Evidence From Traffic Stops In Missouri, Allison P. Harris, Elliott Ash, Jeffrey A. Fagan

Faculty Scholarship

This paper provides evidence of racial variation in local governments' traffic enforcement responses to budget stress using data from policing agencies in the state of Missouri for the years 2001 through 2012. Like previous studies, we find that local budget stress is associated with higher citation rates. In addition, we find that there is an increase in traffic-stop arrests. However, we find that these effects are concentrated among white (rather than black or Hispanic) drivers. The results are robust to the inclusion of a range of covariates for traffic stops and to the inclusion of local population features interacted with ...


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 ...


Studying The "New" Civil Judges, Anna E. Carpenter, Jessica K. Steinberg, Colleen F. Shanahan, Alyx Mark Jan 2018

Studying The "New" Civil Judges, Anna E. Carpenter, Jessica K. Steinberg, Colleen F. Shanahan, Alyx Mark

Faculty Scholarship

We know very little about the people and institutions that make up the bulk of the United States civil justice system: state judges and state courts. Our understanding of civil justice is based primarily on federal litigation and the decisions of appellate judges. Staggeringly little legal scholarship focuses on state courts and judges. We simply do not know what most judges are doing in their day-to-day courtroom roles or in their roles as institutional actors and managers of civil justice infrastructure. We know little about the factors that shape and influence judicial practices, let alone the consequences of those practices ...


Climate Change And Human Trafficking After The Paris Agreement, Michael Gerrard Jan 2018

Climate Change And Human Trafficking After The Paris Agreement, Michael Gerrard

Faculty Scholarship

At least 21 million people globally are victims of human trafficking, typically involving either sexual exploitation or forced labor. This form of modern-day slavery tends to increase after natural disasters or conflicts where large numbers of people are displaced from their homes and become highly vulnerable. In the decades to come, climate change will very likely lead to a large increase in the number of people who are displaced and thus vulnerable to trafficking. The Paris Climate Agreement of 2015 established objectives to limit global temperature increases, but the voluntary pledges made by nearly every country fall far short of ...


Do The Ends Justify The Means? Policing And Rights Tradeoffs In New York City, Amanda Geller, Jeffrey Fagan, Tom R. Tyler Jan 2018

Do The Ends Justify The Means? Policing And Rights Tradeoffs In New York City, Amanda Geller, Jeffrey Fagan, Tom R. Tyler

Faculty Scholarship

Policing has become an integral component of urban life. New models of proactive policing create a double-edged sword for communities with strong police presence. While the new policing creates conditions that may deter and prevent crime, close surveillance and frequent intrusive police-citizen contacts have strained police-community relations. The burdens of the new policing often fall on communities with high proportions of African American and Latino residents, yet the returns to crime control are small and the risks of intrusive, impersonal, aggressive non-productive interactions are high. As part of the proffered tradeoff, citizens are often asked to view and accept these ...


The Law's Own Virtue, Joseph Raz Jan 2018

The Law's Own Virtue, Joseph Raz

Faculty Scholarship

The paper offers a new account of the rule of law, revising my previous view, and criticising some alternatives. It focuses on the rule of law's aim to avoid arbitrary government, and on its relation to the essential functions of government. The rule of law requires that government action will manifest an intention to protect and advance the interests of the governed. As such it is almost a necessary condition for the law's ability to meet other moral demands, and it facilitate coordination and cooperation internally and internationally.


Preemption And Commandeering Without Congress, Jessica Bulman-Pozen Jan 2018

Preemption And Commandeering Without Congress, Jessica Bulman-Pozen

Faculty Scholarship

In the “age of polarization” this Symposium addresses, states may introduce salutary pluralism into an executive-dominated regime. With partisan divisions sidelining Congress, states are at once principal implementers and principal opponents of presidential policies. As polarization makes states more central to national policymaking, however, it also poses new threats to their ability to act. This Essay cautions against recent efforts to preempt state control over state officials and to require states to follow other states’ policies, using sanctuary jurisdictions and the pending federal Concealed Carry Reciprocity Act as examples


Authors And Machines, Jane C. Ginsburg, Luke Ali Budiardjo Jan 2018

Authors And Machines, Jane C. Ginsburg, Luke Ali Budiardjo

Faculty Scholarship

Machines, by providing the means of mass production of works of authorship, engendered copyright law. Throughout history, the emergence of new technologies tested the concept of authorship, and courts in response endeavored to clarify copyright’s foundational principles. Today, developments in computer science have created a new form of machine – the “artificially intelligent” system apparently endowed with “computational creativity” – that introduces challenging variations on the perennial question of what makes one an “author” in copyright law: Is the creator of a generative program automatically the author of the works her process begets, even if she cannot anticipate the contents of ...


The Middleman’S Damages Revisited, Victor P. Goldberg Jan 2018

The Middleman’S Damages Revisited, Victor P. Goldberg

Faculty Scholarship

If A promises to sell to B who, in turn, promises to sell to C and either A or C breaches should B receive the gain it expected had both transactions occurred (lost profits) or the larger market/contract differential? Recent case law and commentary argues for the lost profit remedy. The argument is that there is a conflict between awarding market damages and making the nonbreacher whole. This paper argues that there is no conflict. If B were a broker, and C breached, then A would have an action against C for market damages. If B were party to ...


Foreword – The 2017 Tax Cuts: How Polarized Politics Produced Precarious Policy, Michael J. Graetz Jan 2018

Foreword – The 2017 Tax Cuts: How Polarized Politics Produced Precarious Policy, Michael J. Graetz

Faculty Scholarship

By lowering the corporate tax rate from 35% to 21%, the 2017 tax legislation brought the U.S. statutory rate into closer alignment with the rates applicable in other Organisation for Economic Co-operation and Development (OECD) nations, thereby decreasing the incentive for businesses to locate their deductions in the United States and their income abroad. Its overhaul of the U.S. international income tax rules simultaneously reduced preexisting incentives for U.S. multinationals to reinvest their foreign earnings abroad and put a floor on the benefits of shifting profits to low-tax jurisdictions. The 2017 legislation also added an unprecedented, troublesome ...


Brain Development, Social Context And Justice Policy, Elizabeth S. Scott, Natasha Duell, Laurence Steinberg Jan 2018

Brain Development, Social Context And Justice Policy, Elizabeth S. Scott, Natasha Duell, Laurence Steinberg

Faculty Scholarship

Justice policy reform in the past decade has been driven by research evidence indicating that brain development is ongoing through adolescence, and that neurological and psychological immaturity likely contributes in important ways to teenagers’ involvement in crime. But despite the power of this trend, skeptics point out that many (perhaps most) adolescents do not engage in serious criminal activity; on this basis, critics argue that normative biological and psychological factors associated with adolescence are unlikely to play the important role in juvenile offending that is posited by supporters of the reform trend. This Article explains that features associated with biological ...


Identity And Social Bonds, Joseph Raz Jan 2018

Identity And Social Bonds, Joseph Raz

Faculty Scholarship

I first argue that there is no problem about how to justify partialities (though there is a difficulty in justifying impartialities). Then I consider the role of consent in justifying rights and duties, using voluntary associations as a case in which consent has an important but limited role in doing so, a role determined and circumscribed by evaluative considerations. The values explain why consent can bind and bind one to act as one does not wish to do and even as one judges to be ill advised. That opens the way to an explanation of how value considerations relate to ...


The Supreme Court, Judicial Elections, And Dark Money, Richard Briffault Jan 2018

The Supreme Court, Judicial Elections, And Dark Money, Richard Briffault

Faculty Scholarship

In its cases dealing with judicial elections, the Court has cycled back and forth over whether to treat judges as representatives of the voters, like other elected officials, with judicial elections subject to the same constitutional rules as other elections or to emphasize the distinctive nature of the judicial role, which could support special limits on judicial campaign activity. Over a trilogy of cases decided between 2002 and 2015 – Republican Party of Minnesota v. White, Caperton v. A.T. Massey Coal Co., and Williams-Yulee v. Florida Bar – a divided Court has struggled to hold together the First Amendment’s commitment ...


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 ...


Another One Bites The Dust: The Distance Between Luxembourg And The World Is Growing After Achmea, Petros C. Mavroidis, Carlo M. Cantore Jan 2018

Another One Bites The Dust: The Distance Between Luxembourg And The World Is Growing After Achmea, Petros C. Mavroidis, Carlo M. Cantore

Faculty Scholarship

The CJEU has become a gatekeeper. Ever since Opinion 1/91, the CJEU has been imposing barriers to the recognition of decisions by foreign jurisdictions. Its recent Achmea decision is the natural consequence of case law so far. This attitude would not be problematic by itself since, through this attitude, the European Union would still be liable at the international plane, even if it did not implement its international obligations (liability- over property rules). This is not the end of the story. The CJEU accepts the, in principle, relevance of decisions by some international jurisdictions. However, the CJEU has repeatedly ...


Dissenting Opinions In The Wto Appellate Body: Drivers Of Their Issuance & Implications For The Institutional Jurisprudence, Petros C. Mavroidis, Evan Y. Kim Jan 2018

Dissenting Opinions In The Wto Appellate Body: Drivers Of Their Issuance & Implications For The Institutional Jurisprudence, Petros C. Mavroidis, Evan Y. Kim

Faculty Scholarship

The Appellate Body (AB) of the WTO has issued over 140 reports but only eight separate opinions, four of which are genuinely dissenting. Such paucity, in fact, is the WTO’s implicit tradition inherited from GATT of prioritizing unanimous decisions, hoping they solidify the institution’s legitimacy and countries’ confidence in the system. But at the more individual level, an AB member’s decision to dissent is driven by multiple factors that have implications for the institution’s jurisprudence. First, the factors explain how the symbiotic relationship between an AB member and his or her nominating country – whose interests turn ...


The “Protection Of The Competitive Process” Standard, Tim Wu Jan 2018

The “Protection Of The Competitive Process” Standard, Tim Wu

Faculty Scholarship

The antitrust law should return to a standard more realistic and suited to the legal system – the “protection of the competitive process.” It posits a basic question for law enforcement and judges. Given complained-of conduct, is that conduct actually part of the competitive process, or is it a sufficient deviation as to be unlawful? In this view, antitrust law aims to create a body of common-law rules that punish and therefore deter such disruptions – hence “protecting the competitive process.”


Separation Of Powers In Comparative Perspective: How Much Protection For The Rule Of Law?, Peter L. Strauss Jan 2018

Separation Of Powers In Comparative Perspective: How Much Protection For The Rule Of Law?, Peter L. Strauss

Faculty Scholarship

Writing about separation of powers with particular attention to the contrasting American and British views at the time of Trump and Brexit has been challenging and illuminating. The essay takes as its third framework the constrained parliamentarianism Prof. Bruce Ackerman celebrated in his essay, The New Separation of Powers, 113 Harv. L. Rev. 633 (2000), and briefly considers its relative success in Australia, France, and Germany, and failure in Hungary and Poland, in achieving “separation of powers” universally understood ends, the prevention of autocracy and preservation of human freedoms. That courts and judges would not be political actors, that governments ...


Eroding "Checks" On Presidential Authority – Norms, The Civil Service, And The Courts, Peter L. Strauss Jan 2018

Eroding "Checks" On Presidential Authority – Norms, The Civil Service, And The Courts, Peter L. Strauss

Faculty Scholarship

Shortly after the November elections returned control of the House of Representatives to Democrat control, twenty-one scholars of administrative law met at the Chicago-Kent College of Law to hear and discuss seven papers on the general subject of President Trump and administrative law. A number have already been posted to SSRN. This paper is a commentary on Susan Rose-Ackerman’s essay “Executive Rulemaking and Democratic Legitimacy: ‘Reform’ in the US and the UK’s Route to Brexit” which insightfully illuminates important differences between parliamentary and presidential systems of government in relation to executive bodies’ production of the large volume of ...


A Softer, Simpler View Of Chevron, Peter L. Strauss Jan 2018

A Softer, Simpler View Of Chevron, Peter L. Strauss

Faculty Scholarship

Justice Kennedy's concurrence in Pereira gives reason to hope that the Court may be finally catching on to the difficulties it created by Chevron's opening language, as distinct from its inherent reasoning. When courts quote language like "precise question" and "permissible" to limit themselves (as Justice Scalia and others unfortunately tended to reinforce by their quotations from the opinion), they stray not only from judicial function but also from the statute (APA) that instructs them how to review, and which strangely the opinion does not mention. But Chevron actually (a) independently found and defined a statutory gap within ...


Introduction: Troubling Transparency, David E. Pozen, Michael Schudson Jan 2018

Introduction: Troubling Transparency, David E. Pozen, Michael Schudson

Faculty Scholarship

Transparency is a value in the ascendance. Across the globe, the past several decades have witnessed a spectacular explosion of legislative reforms and judicial decisions calling for greater disclosure about the workings of public institutions. Freedom of information laws have proliferated, claims of a constitutional or supra-constitutional "right to know" have become commonplace, and an international transparency lobby has emerged as a civil society powerhouse. Open government is seen today in many quarters as a foundation of, if not synonymous with, good government.

At the same time, a growing number of scholars, advocates, and regulators have begun to raise hard ...


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 ...


Race And Bankruptcy, Edward R. Morrison, Belisa Pang, Antoine Uettwiller Jan 2018

Race And Bankruptcy, Edward R. Morrison, Belisa Pang, Antoine Uettwiller

Faculty Scholarship

Among consumers who file for bankruptcy, African Americans file Chapter 13 petitions at substantially higher rates than other racial groups. Some have hypothesized that the difference is attributable to discrimination by attorneys. We show that the difference may be attributable, in substantial part, to a selection effect: Among distressed consumers, African Americans have longer commutes to work, rely more heavily on cars for the commute, and therefore have greater demand for a bankruptcy process (Chapter 13) that allows them to retain their cars. We begin by showing that African Americans tend to have longer commuting times than other consumers and ...