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Choice Of Law And Employee Restrictive Covenants: An American Perspective, Gillian Lester, Elizabeth Ryan 2010 Columbia Law School

Choice Of Law And Employee Restrictive Covenants: An American Perspective, Gillian Lester, Elizabeth Ryan

Faculty Scholarship

Employees are increasingly mobile across state lines. This is partly the result of technological change facilitating individual movement and communication, but also a result of corresponding changes in corporate organization to establish offices and interests in multiple jurisdictions. With these developments, there has been a rise in litigation surrounding the enforcement of employee covenants not to compete when the parties or issues involved have connections to multiple jurisdictions. The emerging body of law intrigues and confounds lawyers and commentators because of its complexity and unpredictability. This essay is an effort to describe recent legal developments in the United States, situating ...


Sales Or Plans: A Comparative Account Of The "New" Corporate Reorganization, Stephanie Ben-Ishai, Stephen J. Lubben 2010 Osgoode Hall Law School of York University

Sales Or Plans: A Comparative Account Of The "New" Corporate Reorganization, Stephanie Ben-Ishai, Stephen J. Lubben

Articles & Book Chapters

In this article, Professors Stephanie Ben-Ishai and Stephen Lubben explore the recent surge in popularity of “quick-sales,” essentially the pre-reorganization plan sale of an insolvent debtor’s assets. In their examination of quick sales, the authors use the recent examples of Lehman Brothers and Chrysler to illustrate the popularity and relevance of the pre-plan sales. The authors then move on to a more detailed discussion of the quick sales process in both Canada and the United States, isolating the differences and similarities between both countries, and weighing the costs and benefits of each approach. Ultimately, the authors argue that questions ...


Criminal Justice Law Reform: Stealing A Page From The American Playbook, James Stribopoulos 2010 Osgoode Hall Law School of York University

Criminal Justice Law Reform: Stealing A Page From The American Playbook, James Stribopoulos

Articles & Book Chapters

Criminal justice law reform is a major component of the Federal Government's current legislative agenda. Unfortunately, instead of basing reforms on criminological research or the advice of experts, our current Government, by its own admission, is far more interested in what ordinary Canadians think about the criminal justice system.


Optimization And Its Discontents In Regulatory Design: Bank Regulation As An Example, William H. Simon 2010 Columbia Law School

Optimization And Its Discontents In Regulatory Design: Bank Regulation As An Example, William H. Simon

Faculty Scholarship

Economists and economically-trained lawyers tend to speak about regulation from a perspective organized around the basic norm of optimization. By contrast, an important managerial literature espouses a perspective organized around the basic norm of reliability. The perspectives are not logically inconsistent, but the economist’s view sometimes leads in practice to a preoccupation with decisional simplicity and cost minimization at the expense of complex judgment and learning. Drawing on a literature often ignored by economists and lawyers, I elaborate the contrast between the optimization and reliability perspectives. I then show how it illuminates current discussions of the reform of bank ...


Braiding: The Interaction Of Formal And Informal Contracting In Theory, Practice And Doctrine, Ronald J. Gilson, Charles F. Sabel, Robert E. Scott 2010 Columbia Law School

Braiding: The Interaction Of Formal And Informal Contracting In Theory, Practice And Doctrine, Ronald J. Gilson, Charles F. Sabel, Robert E. Scott

Faculty Scholarship

This article studies the relationship between formal contract enforcement, where performance is encouraged by the prospect of judicial intervention, and informal enforcement, where performance is motivated by the threat of lost reputation and expected future dealings or a taste for reciprocity. The incomplete contracting literature treats the two strategies as separate phenomena. By contrast, a rich experimental literature considers whether the introduction of formal contracting and state enforcement “crowds out” or degrades the operation of informal contracting. Both literatures, however, focus too narrowly on formal contracts as a system of incentives for inducing parties to perform substantive actions, while assuming ...


Respect, Authority & Neutrality, Joseph Raz 2010 Columbia Law School

Respect, Authority & Neutrality, Joseph Raz

Faculty Scholarship

The paper is a critique of three papers, by Stephen Wall, Leslie Green and Stephen Darwall. In part it defends, and at times modifies my views on respect for people, practical Authority & political neutrality. And in parts it critiques the views of Wall, Green and Darwall. The criticque of Darwall extends to his views on rights, duties and second-personal reasons. This version is very close to, though not entirely identical with the article which will be published in Ethics.


Efficient Enforcement In International Law, Omri Ben-Shahar, Anu Bradford 2010 Columbia Law School

Efficient Enforcement In International Law, Omri Ben-Shahar, Anu Bradford

Faculty Scholarship

Enforcement is a fundamental challenge for international law. Sanctions are costly to impose, difficult to coordinate, and often ineffective in accomplishing their goals. Rewards are likewise costly and domestically unpopular. Thus, efforts to address pressing international problems - such as reversing climate change and coordinating monetary policy - often fall short. This article offers a novel approach to international enforcement and demonstrates how it would apply to those challenging problems. It develops a mechanism of Reversible Rewards, which combine sticks and carrots in a unique, previously unexplored, way. Reversible Rewards require a precommitted fund aimed to reward the target state for its ...


Discrimination By Comparison, Suzanne B. Goldberg 2010 Columbia Law School

Discrimination By Comparison, Suzanne B. Goldberg

Faculty Scholarship

Contemporary discrimination law is in crisis, both methodologically and conceptually. The judiciary’s favored heuristic for observing discrimination – a comparator who is like the discrimination claimant but for the protected characteristic – has nearly depleted discrimination jurisprudence and theory. The resulting deficit can be explained, in turn, by the comparator methodology’s profound mismatch with current understandings of identity discrimination and the realities of the modern workplace. Even in run-of-the-mill cases, comparators often cannot be found, particularly in today’s mobile, knowledge-based economy. This difficulty amplifies for complex claims, which rest on thicker understandings of discrimination developed in second-generation intersectionality, identity ...


Overcriminalization For Lack Of Better Options: A Celebration Of Bill Stuntz, Daniel C. Richman 2010 Columbia Law School

Overcriminalization For Lack Of Better Options: A Celebration Of Bill Stuntz, Daniel C. Richman

Faculty Scholarship

Bill Stuntz has brilliantly highlighted the supply side of overcriminalization – how the institutional purposes of criminal justice actors will often be served by more criminal law (and perhaps more criminal enforcement) than is appropriate for a well-functioning society. One might profitably supplement his insights by exploring the demand side, and in particular how criminal law offers a unique and unnecessarily bundled set of institutional and procedural characteristics for which there are no non-criminal substitutes. While for actors within the system, the opacity of criminal law cloaks the self-dealing of agencies and agencies (that's the supply side problem), so for ...


Minimalism And Experimentalism In The Administrative State, Charles F. Sabel, William H. Simon 2010 Columbia Law School

Minimalism And Experimentalism In The Administrative State, Charles F. Sabel, William H. Simon

Faculty Scholarship

Minimalism is our name for the dominant liberal perspective on public policy implementation in contemporary legal scholarship. Minimalism emphasizes public interventions that incorporate market concepts and practices and that centralize and minimize administrative discretion. This essay appraises Minimalism in relation to a competing liberal view of the administrative state. Experimentalism emphasizes interventions in which central government affords broad discretion to local administrative units but measures and assesses their performance in ways designed to induce continuous learning and revision of standards. We fault Minimalist scholarship for ignoring an important reorientation in public policy along Experimentalist lines in the U.S. and ...


The Structure Of Terrorism Threats And The Laws Of War, Matthew C. Waxman 2010 Columbia Law School

The Structure Of Terrorism Threats And The Laws Of War, Matthew C. Waxman

Faculty Scholarship

This article considers a major debate in the American and European counterterrorism analytic community – whether the primary terrorist threat to the West is posed by hierarchical, centralized terrorist organizations operating from geographic safe havens, or by radicalized individuals conducting a loosely organized, ideologically common but operationally independent fight against western societies – and this debate’s implications for both jus ad bellum and jus in bello. Analysis of how the law of armed conflict might be evolving to deal with terrorism should engage in more nuanced and sophisticated examination of how terrorism threats are themselves evolving. Moreover, the merits of legal ...


Ratings Reform: The Good, The Bad, And The Ugly, John C. Coffee Jr. 2010 Columbia Law School

Ratings Reform: The Good, The Bad, And The Ugly, John C. Coffee Jr.

Faculty Scholarship

Both in Europe and in the United States, major steps have been taken to render credit rating agencies more accountable. But do these steps address the causes of the debacle in the subprime mortgage market that triggered the 2008-2009 crisis? Surveying the latest evidence on how and why credit ratings became inflated, this paper argues that conflicts of interest cannot be purged on a piecemeal basis. The fundamental choice is between (1) implementing a “subscriber pays” model that compels rating agencies to compete for the favor of investors, not issuers, and (2) seeking to deemphasize or eliminate the role of ...


A New Look At Patent Quality: Relating Patent Prosecution To Validity, Ronald J. Mann, Marian Underweiser 2010 Columbia Law School

A New Look At Patent Quality: Relating Patent Prosecution To Validity, Ronald J. Mann, Marian Underweiser

Faculty Scholarship

The paper uses two hand-collected datasets to implement a novel research design for analyzing the precursors to patent quality. Operationalizing patent "quality" as legal validity, the paper analyzes the relation between Federal Circuit decisions on patent validity and three sets of data about the patents: quantitative features of the patents themselves, textual analysis of the patent documents, and data collected from the prosecution histories of the patents. The paper finds large and statistically significant relations between ex post validity and both textual features of the patents and ex ante aspects of the prosecution history (especially prior art submissions and the ...


Risk As A Proxy For Race, Bernard E. Harcourt 2010 Columbia Law School

Risk As A Proxy For Race, Bernard E. Harcourt

Faculty Scholarship

Today, an increasing chorus argues that risk-assessment instruments are a politically feasible way to resolve our problem of mass incarceration and reduce prison populations. In this essay, I argue against this progressive argument for prediction: using risk-assessment tools to decrease prison populations would unquestionably aggravate the already intolerable racial imbalance in our prison populations and will not address the real source of mass incarceration, namely the admissions process. Risk has collapsed into prior criminal history, and prior criminal history has become a proxy for race. This means that using risk-assessment tools, even for progressive ends, is going to significantly aggravate ...


Intimate Discrimination: The State's Role In The Accidents Of Sex And Love, Elizabeth F. Emens 2010 Columbia Law School

Intimate Discrimination: The State's Role In The Accidents Of Sex And Love, Elizabeth F. Emens

Faculty Scholarship

This is a challenging moment for the law of discrimination. The state’s role in discrimination has largely shifted from requiring discrimination - through official policies such as segregation - to prohibiting discrimination - through federal laws covering areas such as employment, housing, education, and public accommodations. Yet the problem of discrimination persists, often in forms that are hard to regulate or even to recognize. At this challenging moment, the intimate domain presents a vital terrain for study in two main ways. First, conceptually, studying the intimate domain permits new insights into discrimination and the law’s identity categories, because people are more ...


Susan Wolf On The Meaning Of Life: A Review, Joseph Raz 2010 Columbia Law School

Susan Wolf On The Meaning Of Life: A Review, Joseph Raz

Faculty Scholarship

A review in Ethics of Wolf's account of the meaning of life in her Tanner Lectures, examining the relations of the meaning of life, well-being, value, one's attitude to one's activities and one's success in them


The Canadian Public Domain: What, Where, And To What End?, Carys J. Craig 2010 Osgoode Hall Law School of York University

The Canadian Public Domain: What, Where, And To What End?, Carys J. Craig

Articles & Book Chapters

This essay explores the important body of scholarship that has emerged on the substance, nature, and role of the public domain in intellectual property law. I offer some concrete definitions of the public domain in the copyright context, identify some ongoing sources of debate in the literature, and highlight some particularly significant voices in public domain discourse. In doing so, my aim is twofold: first, I mean to present a reasonably comprehensive but concise review of the academic public domain movement, which has been directed towards substantiating and politicizing the concept of the public domain, second, I hope to re-situate ...


Reorienting Regulation: Pollution Enforcement In Industrializing Countries, Lesley K. McAllister, Benjamin Van Rooij, Robert A. Kagan 2010 Berkeley Law

Reorienting Regulation: Pollution Enforcement In Industrializing Countries, Lesley K. Mcallister, Benjamin Van Rooij, Robert A. Kagan

Faculty Scholarship

This special issue aims to set a course for future inquiry on regulatory enforcement in industrializing countries. With examples from major countries including Brazil, China, and Indonesia, the articles develop four cross-cutting themes: ( 1) how enforcement and its institutional context vary geographically and temporally, (2) how enforcement is affected by deficiencies in regulatory capacity and autonomy, ( 3) how civil liability regimes interact with enforcement, and ( 4) the relationship between enforcement and regulatory instrument choice.


Framing Justice: Media, Bias, And Legal Decisionmaking, Perry L. Moriearty 2010 University of Maryland Francis King Carey School of Law

Framing Justice: Media, Bias, And Legal Decisionmaking, Perry L. Moriearty

Maryland Law Review

No abstract provided.


The Importance Of Being Ambiguous: Substantive Canons, Stare Decisis, And The Central Role Of Ambiguity Determinations In The Administrative State, Brian G. Slocum 2010 University of Maryland Francis King Carey School of Law

The Importance Of Being Ambiguous: Substantive Canons, Stare Decisis, And The Central Role Of Ambiguity Determinations In The Administrative State, Brian G. Slocum

Maryland Law Review

No abstract provided.


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