Digital Commons Network^™

Tax Now Or Tax Never: Political Optionality And The Case For Current-Assessment Tax Reform, David Gamage, John R. Brooks

Faculty Scholarship

The U.S. income tax system is broken. Due to the realization doctrine and taxpayers’ consequent ability to defer taxation of gains, taxpayers can easily minimize or avoid the taxation of investment income, a failure that is magnified many times over when considering the ultra-wealthy. As a result, this small group of taxpayers commands an enormous share of national wealth yet pays paltry taxes relative to the economic income their wealth produces—a predicament that this Article condemns as being economically, politically, and socially harmful. The conventional view among tax law experts has assumed that the problems created by the realization doctrine …

Federalism, Private Rights, And Article Iii Adjudication, John M. Golden, Thomas H. Lee

Faculty Scholarship

This Article sheds new light on the private rights/public rights distinction used by the Supreme Court to assess the extent to which the United States Constitution permits adjudication by a non-Article III federal tribunal. State courts have traditionally been the primary deciders of lawsuits over private rights—historically defined as suits regarding “the liability of one individual to another under the law as defined.” If Congress could limitlessly assign adjudication of private rights cases to federal officials lacking the life tenure and salary protections of Article III judges, the political branches of the federal government would enjoy vastly expanded authority to …

Predicting Cybersecurity Incidents Through Mandatory Disclosure Regulation, Aniket Kesari

Faculty Scholarship

Cybersecurity risk is an increasingly common concern for organizations
that collect and maintain vast troves of data. In 2011, the United States
Securities and Exchange Commission (SEC) provided guidelines for how
publicly traded companies should convey these risks to potential investors. But
does this mandatory disclosure regime effectively serve this purpose in the
cybersecurity context? This Article uses machine learning and natural language
processing techniques to analyze firms’ mandatory risk disclosure statements,
predict which firms are at the greatest risk of suffering cybersecurity incidents,
and evaluate how well disclosure meets the goals of the broad regulatory
regime. More broadly, this …

Creating A Strong Legal Preference For Kinship Care, Joshua Gupta-Kagan

Faculty Scholarship

One new to our field would be forgiven for thinking that the law must favor placing foster children with kin rather than with strangers. After all, individuals and organizations from across the ideological spectrum endorse kinship care, government publications describe kinship care as “the preferred resource” for placing children who cannot live at home with a parent and, after steady increases over multiple decades, authorities now place more than one-third of all foster children with kin. And decades of evidence establish that kinship care is generally more stable and serves children’s health and well-being better than living with strangers, a …

Era Project Olc Letter, Katherine M. Franke, David E. Pozen, Erwin Chemerinsky, Melissa Murray, Laurence H. Tribe, Martha Minow, Geoffrey C. Stone, Cary Franklin, Michael C. Dorf, Victoria Nourse

Faculty Scholarship

The Equal Rights Amendment Project at Columbia Law School (“ERA Project”) and the undersigned scholars submit this letter at the request of your office to provide legal analysis of the January 6, 2020 Department of Justice Office of Legal Counsel Memorandum to the National Archives and Records Administration on the Equal Rights Amendment (“2020 OLC Memo”).

Asil Hudson Medal Conversation "Songs My Mother Taught Me: A Very Personal Account": Remarks By Lori Fisler Damrosch, Lori Fisler Damrosch

Faculty Scholarship

First, I am deeply appreciative of this honor, especially in the presence of so many who encouraged me along the way. I would like to acknowledge previous Hudson honorees who are present, including Charlie Brower, Edie Brown Weiss, and Bernie Oxman. Thanks to Catherine, Patrick, and the Allen & Overy law firm for sponsoring this event.

I also want to acknowledge my debts to other Hudson medalists who reached out to me early in my career — when I was, say, a twenty-five-year-old lawyer just getting started in the State Department, and that person was, say, a deputy legal adviser …

This Is Not A Drill: The War Against Antiracist Teaching In America, Kimberlé W. Crenshaw

Faculty Scholarship

On January 5, 2022, Professor Kimberlé Williams Crenshaw received the 2021 Triennial Award for Lifetime Service to Legal Education and the Legal Profession from the Association of American Law Schools (AALS). In this modified acceptance speech delivered at the 2022 AALS Awards Ceremony, she reflects on the path that brought her to this moment and the crisis over antiracist and social justice education that is unfolding today. Arguing that the legal academy bears a collective responsibility to fight back against the silencing of antiracist frameworks, she calls on legal educational institutions to confront their historical agnosticism toward racial subordination and …

Barbarians Inside The Gates: Raiders, Activists, And The Risk Of Mistargeting, Zohar Goshen, Reilly S. Steel

Faculty Scholarship

This Article argues that the conventional wisdom about corporate raiders and activist hedge funds — raiders break things and activists fix them — is wrong. Because activists have a higher risk of mistargeting — mistakenly shaking things up at firms that only appear to be underperforming — they are much more likely than raiders to destroy value and, ultimately, social wealth.

As corporate outsiders who challenge the incompetence or disloyalty of incumbent management, raiders and activists play similar roles in reducing “agency costs” at target firms. The difference between them comes down to a simple observation about their business models: …

Courts And Effective Governance, Mark Tushnet, Madhav Khosla

Faculty Scholarship

Governments are put in place to carry out policies. Effective governance means that they have the capacity to implement those policies. As Samuel Huntington observed, “[t]he most important political distinction among countries concerns not their form of government but their degree of government.” For our purposes, state capacity is the ability of a government-in-place to develop and implement policies that its leaders believe will improve national well-being. The capacity to govern includes having the required material resources, the personnel for whatever is necessary to deliver the policies to their beneficiaries, and a bureaucratic organization that enables high-level officials to implement …

The Enduring Importance Of Parental Rights, Clare Huntington, Elizabeth S. Scott

Faculty Scholarship

In this symposium contribution for The Law of Parents and Parenting, we argue that parental rights are — and should remain — the backbone of family law. State deference to parents is warranted not because parents are infallible, but rather because parental rights, properly understood and limited, promote child wellbeing. This is true for several reasons, but two stand out. First, parental rights promote the stability of the parent-child relationship by restricting the state’s authority to intervene in families. This protection promotes healthy child development for all children, and it is especially important for low-income families and families of color, …

Countering The New Election Subversion: The Democracy Principle And The Role Of State Courts, Jessica Bulman-Pozen, Miriam Seifter

Faculty Scholarship

Among the threats to American democracy, the most serious may also be the most banal: future elections will be compromised by quiet changes to the law. State legislators across the country have introduced bills that give them power to reject the will of voters. They have established sham audits and investigations. And they have created new criminal offenses that undermine professional election administration. While power-shifting legislation, audits, and criminal penalties advertise their fealty to law, they threaten the franchise and electoral integrity, as well as nonpartisan, expert election administration. Because of its ostensibly legal, even legalistic, character, however, the new …

Judge Williams On Administrative Law, Thomas W. Merrill

Faculty Scholarship

It is an honor to speak of Judge Williams’s contributions to administrative law. I did not know him well, but greatly enjoyed the interactions we had, either at various conferences or, more recently, as part of the American Law Institute’s Restatement Fourth of Property, of which I am an associate reporter and he was a very valued member of the advisory committee.

I nevertheless feel a strong kinship with Judge Williams since I believe he was the one judge in all the country who shared an academic background most similar to mine. He taught Administrative Law, Environmental Law, and Property …

The Essential Meaning Of The Rule Of Law, Thomas W. Merrill

Faculty Scholarship

We have heard much in recent times about the rule of law. Everyone seems to be in favor of it. Everyone seems to think that those with whom they strongly disagree are violating it. Let me remind you of a few examples.

President Obama, frustrated by Congress’s failure to adopt immigration reform, stated at a cabinet meeting that he still had a “pen and a phone.” He proceeded to announce a policy called DACA, short for Deferred Action for Childhood Arrivals, which effectively adopted a type of amnesty for some 700,000 persons who had arrived in the country as children …

Valid T-Ratio Inference For Iv, David S. Lee, Justin Mccrary, Marcelo J. Moreira, Jack Porter

Faculty Scholarship

In the single-IV model, researchers commonly rely on t-ratio-based inference, even though the literature has quantified its potentially severe large-sample distortions. Building on Stock and Yogo (2005), we introduce the tF critical value function, leading to a standard error adjustment that is a smooth function of the first-stage F-statistic. For one-quarter of specifications in 61 AER papers, corrected standard errors are at least 49 and 136 percent larger than conventional 2SLS standard errors at the 5 percent and 1 percent significance levels, respectively. tF confidence intervals have shorter expected length than those of Anderson and Rubin (1949), whenever both are …

How Agencies Can Better Regulate For Racial Justice, Olatunde C.A. Johnson

Faculty Scholarship

On his first day in office, President Joseph R. Biden signed an executive order to advance racial equity throughout the federal government by taking a “systematic approach to embedding fairness in decision-making,” redressing inequities, and advancing equal opportunity in agency policies and programs.

This order is an important step. President Biden’s executive order promises new, proactive engagement by the administrative state to promote racial equity and other dimensions of inclusion in agency programs. But federal administrative agencies have played a key role in structuring racial segregation and sustaining racial inequality in housing, health care, access to transit, and wealth. President …

Asset Managers As Regulators, Dorothy S. Lund

Faculty Scholarship

The conventional view of regulation is that it exists to constrain corporate activity that harms the public. But amid perceptions of government failure, many now call on corporations to tackle social problems themselves. And in this moment of dissatisfaction with government, powerful asset managers have stepped in to serve as regulators of last resort, adopting rules that bind corporate America on issues of great social importance, including climate change and workplace diversity. This Article describes this dynamic — where shareholders have become regulators — which has been made possible by the rise of institutional shareholding (and index investing in particular) …

What Does Effective Government Have To Do With The Constitution?, Gillian E. Metzger

Faculty Scholarship

Nearly a million people dead and counting. More than 77 million infected, a little less than one-fifth of the total infections worldwide. The United States has had more deaths than any other country, and its COVID-19 death rate of 276 per 100,000 people is the highest among the world’s wealthiest nations. Blacks, Hispanics, and Native Americans are hospitalized and die at significantly higher rates than whites. Some bright lights exist too, one being the speedy development of vaccines and their deployment in 2021 – although there, too, both the national government and the states have sometimes stumbled. Another is legislative …

A Scholarly Error And A Larger Truth, Philip A. Hamburger

Faculty Scholarship

Can Congress delegate its legislative power? The question has stimulated much recent scholarship, including Professor Nicholas Parrillo’s detailed study of the 1798 federal tax act. According to his article, the statute delegated binding rulemaking power. My recent SSRN draft Nondelegation Blues questions Parrillo’s conclusion. But now in this blog, he suggests that my article misreads his argument.

The Genius Of Common-Law Intellectual Property, Shyamkrishna Balganesh

Faculty Scholarship

Among Richard Epstein’s influential contributions to legal scholarship over the years is his writing on common-law intellectual property. In it, we see his attempt to meld the innate logic of the common law’s conceptual structure with the realities of the modern information economy. Common-law intellectual property refers to different judge-made causes of action that create forms of exclusive rights and privileges in intangibles, interferences that are then rendered enforceable through private liability. In this essay, I examine Epstein’s writing on two such doctrines, hot-news misappropriation and cybertrespass, which embrace several important ideas to which modern discussions of intellectual property would …

Structural Biases In Structural Constitutional Law, Jonathan S. Gould, David E. Pozen

Faculty Scholarship

Structural constitutional law regulates the workings of government and supplies the rules of the political game. Whether by design or by accident, these rules sometimes tilt the playing field for or against certain political factions – not just episodically, based on who holds power at a given moment, but systematically over time – in terms of electoral outcomes or policy objectives. In these instances, structural constitutional law is itself structurally biased.

This Article identifies and begins to develop the concept of such structural biases, with a focus on biases affecting the major political parties. Recent years have witnessed a revival …

The Insular Cases Run Amok: Against Constitutional Exceptionalism In The Territories, Christina D. Ponsa-Kraus

Faculty Scholarship

The Insular Cases have been enjoying an improbable — and unfortunate — renaissance. Decided at the height of what has been called the “imperialist” period in U.S. history, this series of Supreme Court decisions handed down in the early twentieth century infamously held that the former Spanish colonies annexed by the United States in 1898 — Puerto Rico, the Philippines, and Guam — “belong[ed] to, but [were] not a part of, the United States.” What exactly this meant has been the subject of considerable debate even as those decisions have received unanimous condemnation. According to the standard account, the …

Election Law Localism And Democracy, Richard Briffault

Faculty Scholarship

American federal and state elections are largely run by local officials. Although election law is almost entirely determined by the federal government and the states, elections are actually conducted by thousands of different county and city elections offices. This decentralization of election administration has often, and fairly, been criticized as resulting in undesirable interlocal variation in the application of election rules, inefficiency, and racial discrimination. Yet, in 2020, local election administration, particularly in large urban areas, was a source of strength. Local officials proved to be resilient, innovative, and attentive to local conditions. The record-high turnout in the face of …

Legal Coding Beyond Capital?, Katharina Pistor

Faculty Scholarship

Capital, I argue in ‘The Code of Capital: How the Law Creates Wealth and Inequality’, is coded in law. Legal coding is a process that adapts and molds formal law over time, often without explicit ex ante sanctioning by a legislature or a court. Several characteristics of formal law make it susceptible to coding, including its inherent incompleteness, the strong endorsement for private autonomy, and decentralised access to a state’s consolidated means of coercion. Would a progressive European Code of Private Law (EPL-code), as proposed by Hesselink, alter any of this and what would it take to ensure that the …

Equity's Federalism, Kellen R. Funk

Faculty Scholarship

The United States has had a dual court system since its founding. One might expect such a pronouncement to refer to the division between state and federal courts, but in the early republic the equally obvious referent would have been to the division between courts of common law and the court of chancery — the distinction, that is, between law and equity. This Essay sketches a history of how the distinction between law and equity was gradually transformed into a doctrine of federalism by the Supreme Court. Congress’s earliest legislation jealously guarded federal equity against fusion with common law at …

Democracy And Disenchantment, Ashraf Ahmed

Faculty Scholarship

During the latter half of the Trump presidency, as it became increasingly clear that the Supreme Court would remain solidly conservative for the foreseeable future, Samuel Moyn and Ryan Doerfler declared war. In popular and scholarly venues, they have steadily built a case for curtailing the power of the nation’s highest court. Their arguments have been both pragmatic and principled. They have underlined, for instance, the risks the Roberts Court poses to progressive goals such as addressing climate change1 and granting student debt relief. More broadly, they object to a “supra-democratic court exercising its current, expansive legislative veto.” For Doerfler …

Intellectual Property, Independent Creation, And The Lockean Commons, Mala Chatterjee

Faculty Scholarship

Copyrights and patents are differently structured intellectual property rights in different kinds of entities. Nonetheless, they are widely regarded by U.S. scholars as having the same theoretical underpinnings. Though scholars have sought to connect philosophical theories of property to intellectual property, with a particular interest in the labor theory of John Locke, these explorations have not sufficiently probed copyrights’ and patents’ doctrinal differences or their philosophical implications for the theories explored. This Article argues that a defining difference between copyrights and patents has normative significance for the framework of Lockean property theory: namely, that copyright law treats independent creation as …

Accommodating Parents, Joshua Gupta-Kagan

Faculty Scholarship

The child protection legal system is supposed to work towards the reunification of parents and children in foster care through individualized services to help parents raise their children safely. But that legal system has long been criticized for frequent and severe invasions into the family integrity rights of parents with disabilities and their children, treating parental disabilities as grounds for permanent separation instead of individual characteristics to be accommodated. Several years ago, it seemed that the law was turning. In 2015, the U.S. Departments of Health and Human Services and Justice issued joint guidance stating that the Americans with Disabilities …

Normative Powers, Joseph Raz

Faculty Scholarship

The chapter provides an analysis of normative powers as the ability to change a normative condition, and distinguishes and analyses several kinds of such powers. It distinguishes between wide normative powers possessed by any act that non-causally results in a normative change, and narrow normative powers, which are the main topic of the chapter. The most important theses of the chapter are: First, the distinction between basic normative powers and chained normative powers (the latter being powers created by the exercise of other powers) and second, defending the apparently surprising claim that people have narrow powers when and because there …

Originalism And Personal Jurisdiction: Several Questions And A Few Answers, Lawrence B. Solum, Max Crema

Faculty Scholarship

The modern constitutional law of personal jurisdiction is largely the product of living constitutionalism. International Shoe's minimum-contacts and fairness standard was not derived from the constitutional text, and it cannot be supported by the original meaning of the Due Process of Law Clauses of the Fifth and Fourteenth Amendments. This Article explores the implications of that fact for the constitutional law of personal jurisdiction, with a focus on the federal courts.

The Article proceeds in six steps. First, it lays out the theoretical framework provided by Public Meaning Originalism, including the Fixation Thesis, the Constraint Principle, and the interpretation-construction …

Photochemistry Of Rna, Rna Monomers, And Plausible Prebiotic Precursors, Sean J. Hoehn, Naishka E. Caldero-Rodríguez, Carlos E. Crespo-Hernández

Faculty Scholarship

Sunlight is the primary source of energy to promote change on Earth. In this context, ultraviolet radiation can be thought as a catalyst of chemical change to refine chemical feedstocks and facilitate their transformations into the building blocks of life. To establish reasonable environmental constraints for the chemical origins of life, it is central to understand how the photochemical reactivity or photochemical resistance of prebiotic molecules might have supported the formation of the RNA monomers on the Earth's surface and particularly in aqueous solution. In this chapter, the photochemistry of the RNA monomers and several conceivably important prebiotic precursors are …