Digital Commons Network^™

"First, Do No Harm" Human Rights And Efforts To Combat Climate Change, Naomi Roht-Arriaza

Faculty Scholarship

No abstract provided.

Engquist And The Erosion Of The Equal Protection Clause: An Attempt To Stop The Creep Of Irrational Dicta, Darien Shanske

Faculty Scholarship

No abstract provided.

The Expansion Trajectory: Trademark Jurisprudence In The Modern Age, Kenneth L. Port

Faculty Scholarship

American trademark law is expanding. The expansion began with the adoption of

the Lanham Act in 1947. At that time and ever since, commentators and law makers

alike referred to the Lanham Act as a codification of the existing common law. In fact,

this codification was a selection and expansion of the common law. The United States

has continued to expand trademark jurisprudence: from incontestability, to cybersquatting,

to dilution - the notion of what it means to protect a trademark has

continued to expand. During this time, the Commerce Clause on which American

federal trademark protection is based has not …

Virtual Territoriality, Edward J. Janger

Faculty Scholarship

No abstract provided.

Fannie Mae And Freddie Mac: Creatures Of Regulatory Privilege, David Reiss

Faculty Scholarship

No abstract provided.

A Short History Of Tontines, Kent Mckeever

Faculty Scholarship

A tontine is an investment scheme through which shareholders derive some form of profit or benefit while they are living, but the value of each share devolves to the other participants and not the shareholder's heirs on the death of each shareholder. The tontine is usually brought to an end through a dissolution and distribution of assets to the living shareholders when the number of shareholders reaches an agreed small number.

If people know about tontines at all, they tend to visualize the most extreme form – a joint investment whose heritable ownership ends up with the last living shareholder. …

A Common Lawyer's Perspective On Contrefaçon, Jane C. Ginsburg

Faculty Scholarship

Contrefaçon in French copyright law examines the scope of French copyright through the lens of remedies. Contrefaçon is the act to which certain civil and criminal sanctions attach. Viewed from this angle, the history of French copyright law tells a tale of the slow emergence of a unified concept of the wrongful act, covering not only the manufacturing of copies but also public performances, live and through transmissions. The emphasis on contrefaçon reveals the continuity of the revolutionary authors' right of 1793 with the ancient régime of printing regulation, with unauthorized production of physical copies of books remaining the essence …

On Death And Magic: Law, Necromancy And The Great Beyond, Eric J. Gouvin

Faculty Scholarship

Every now and then, our legal system interacts with the spirit world, whether by virtue of seances being used in establishing the defense in a criminal matter or being used by the prosecution to impugn the defendant, or because of the impact that ghosts may have on stigmatized property or by virtue of houses being built on cemeteries, like in the movie "Poltergeist." Our legal system has an uneasy relationship with the spirit world and this chapter in the book explores that relationship.

Above All Else Stop Digging: Local Government Law As A (Partial) Cause Of (And Solution To) The Current Housing Crisis, Darien Shanske

Faculty Scholarship

No abstract provided.

Wyeth V. Levine And Agency Preemption More Muddle Or Creeping To Clarity?, Ashutosh Bhagwat

Faculty Scholarship

No abstract provided.

Fannie Mae And Freddie Mac: Privatizing Profit And Subsidizing Loss, David Reiss

Faculty Scholarship

No abstract provided.

From Gats To Apec: The Impact Of Trade Agreements On Legal Services, Laurel S. Terry

Faculty Scholarship

This article provides a comprehensive overview of the treatment of legal services in the United States’ international trade agreements. Although many individuals are now familiar with the General Agreement on Trade in Services (GATS), far fewer realize that legal services are included in at least fifteen international trade agreements to which the United States is a party. This article begins by identifying those trade agreements and other developments including the 2009 Legal Services Initiative of the Asia Pacific Economic Cooperation (APEC). The article continues by explaining the structure of the GATS and comparing its provisions to the provisions found in …

The Constitution And Our Debt To The Future, Rena I. Steinzor

Faculty Scholarship

Health and safety laws have always been justified as manifestations of congressional authority to regulate and protect the free flow of interstate commerce under Article I, section 8 of the Constitution. Professor Steinzor argues that reliance on the Commerce Clause can support next generation proposals, including a National Environmental Legacy Act proposed by Professor Alyson Flournoy, which would require that any action on federal land involving the consumption or destruction of resources must be sustainable, as well as pending climate change legislation. But, Steinzor says, a far more desirable constitutional foundation for such laws is the General Welfare Clause found …

Current Patent Laws Cannot Claim The Backing Of Human Rights, Wendy J. Gordon

Faculty Scholarship

In the dispute over the enforcement of pharmaceutical patents, the International Covenant on Economic, Social and Cultural Rights is sometimes cited as giving patent protection the status of a 'human right'. It is true that the ICESCR provides for ‘the right of everyone’ ‘[t]o benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author’. But that does not mean that patent protection is a human right. Patent fails as a human right for many reasons, one of which is the lack of fit between current patent …

Gridlock Economy: How Too Much Ownership Wrecks Markets, Stops Innovation, And Costs Lives (Introduction), Michael A. Heller

Faculty Scholarship

Twenty-five new runways would eliminate most air travel delays in America; fifty patent owners are blocking a major drug company from creating a cancer cure; 90 percent of our broadcast spectrum sits idle while American cell phone service suffers. These problems have solutions that can jump-start innovation and help save our troubled economy. So, what's holding us back?

"The Sole Right ... Shall Return To The Authors": Anglo-American Authors' Reversion Rights From The Statute Of Anne To Contemporary U.S. Copyright, Lionel Bently, Jane C. Ginsburg

Faculty Scholarship

The rise in the seventeenth and eighteenth centuries of a professional class of writers stimulated authors' demands for better remuneration from their writings. The increase in authors who sought to live from their work, rather than from patronage or personal fortune, likely provided at least one impulse for the author-protective provisions of the 1710 Statute of Anne. Under the regime of printing privileges that preceded the Statute of Anne, authors generally received from publisher-booksellers a one-time payment, made when the authors surrendered their manuscripts for publication. Authors whose works enjoyed particularly high demand might negotiate additional payments for new editions …

The Disposing Power Of The Legislature, Thomas W. Merrill

Faculty Scholarship

The Constitution as we understand it includes principles that have emerged over time in a common law fashion. One such principle is the disposing power of the legislature – the understanding that only the legislature has the power to arrange, order, and distribute the power to act with the force of law among the different institutions of society. This Essay illustrates the gradual emergence of the disposing power in criminal, civil, and administrative law, and offers some reasons why it is appropriate that the legislature be given this exclusive authority. One implication of the disposing power is that another type …

Legislation That Isn't – Attending To Rulemaking's "Democracy Deficit", Peter L. Strauss

Faculty Scholarship

Philip Frickey's commitment to practical legal studies won my admiration early on in his career. In this welcome celebration of his extraordinary career, it seems fitting to essay something "practical" – to attempt a constructive approach to an enduring problem – that has some bearing on his lifelong attention to the problem of "interpretation." If it will not make the problem go away, perhaps it will provide a basis for understanding its inevitable tensions, and in that way will help us step past theoretical exegeses suggesting the possibility of simple answers.

The Role Of The Chief Executive In Domestic Administration, Peter L. Strauss

Faculty Scholarship

Written for an international working paper conference on administrative law, this paper sets the Supreme Court's decision in Free Enterprise Fund v. Public Company Accounting Oversight Board in the context of general American concerns about the place of the President in domestic administration, a recurring theme in my writings.

Louis Henkin: Courage And Convictions, Lori Fisler Damrosch

Faculty Scholarship

Louis Henkin was a man of courage and of convictions. His students at Columbia, who engaged with him inside and outside the classroom during the course of five decades, had many opportunities to learn of his convictions, which were manifest in his teaching, writing and activism. But Henkin would not have spoken in the classroom of his own acts of courage, exemplified by (but not limited to) his combat service in the Second World War, nor would he have drawn attention to other personal virtues. This brief tribute (complementary to others being written by colleagues at Columbia for publication here …

A Lucky Child: A Memoir Of Surviving Auschwitz As A Young Boy, Lori Fisler Damrosch

Faculty Scholarship

Many readers of this Journal would readily identify the young boy in lederhosen, hands tightly clasped by his mother, who is in turn enfolded in the father's embrace – all three smiling on what is perhaps the child's third birthday – in the cover photograph of the American edition of the book under review. In this memoir he is Tommy, Tom, Tomek, or Tommyli; in later life he is known to us (and recognized worldwide) as Thomas Buergenthal, judge of the International Court of justice since 2000 and honorary president of the American Society of International Law from 2001 to …

Who Judges? Who Cares? History Now And Then, Barbara Aronstein Black

Faculty Scholarship

There are two strands of history: Call them strand A and strand B. A: "How independent are those who judge?" B: "Where is the judicial power located?" At a high enough level of abstraction the strands merge (as, at a high enough level of abstraction, what does not?). The issue then becomes whether in a given society all judging is in the hands of independent judges. And the point is that there are two ways of avoiding the decision of cases by independent judges, corresponding, naturally, to the two strands of history:

[A] Through the judges: Punish them, reward them, …

A Tale Of Two Paradigms: Judicial Review And Judicial Duty, Philip A. Hamburger

Faculty Scholarship

What is the role of judges in holding government acts unconstitutional? The conventional paradigm is "judicial review." From this perspective, judges have a distinct power to review statutes and other government acts for their constitutionality. The historical evidence, however, reveals another paradigm, that of judicial duty. From this point of view, presented in my book Law and Judicial Duty, a judge has an office or duty, in all decisions, to exercise judgment in accord with the law of the land. On this understanding, there is no distinct power to review acts for their constitutionality, and what is called "judicial review" …

Embedded International Law And The Constitution Abroad, Sarah H. Cleveland

Faculty Scholarship

This Essay explores the role of "embedded" international law in U.S. constitutional interpretation, in the context of extraterritorial application of the Constitution. Traditional U.S. understandings of the Constitution's application abroad were informed by nineteenth-century international law principles of jurisdiction, which largely limited the authority of a sovereign state to its geographic territory. Both international law and constitutional law since have developed significantly away from strictly territorial understandings of governmental authority, however. Modern international law principles of jurisdiction and state responsibility now recognize that states legitimately may exercise power in a number of extraterritorial contexts, and that legal obligations may apply …

The U.S. Experience With Mandatory Copyright Formalities: A Love/Hate Relationship, Jane C. Ginsburg

Faculty Scholarship

Copyright formalities – conditions precedent to the existence or enforcement of copyright, such as provision of information about works of authorship that will put the public on notice as to a work’s protected status and its copyright ownership, or deposit of copies of the work for the national library or other central authority, or local manufacture of copies of works of foreign origin – have performed a variety of functions in US copyright history. Perhaps of most practical importance today, formalities predicate to the existence or enforcement of copyright can serve to shield large copyright owners who routinely comply with …

Ignoring The Writing On The Wall: The Role Of Enterprise Risk Management In The Economic Crisis, Michelle M. Harner

Faculty Scholarship

Enterprise risk management (ERM) targets overall corporate strategy and, when implemented correctly, can manage a corporation’s risk appetite and exposure. When ignored or underutilized, it can contribute to a corporation’s demise. In fact, many commentators point to ERM failures as contributing to the severity of the 2008 economic crisis. This essay examines the different approaches to ERM adopted by financial institutions affected by the 2008 economic crisis and how ERM contributed to the survival or failure of those firms. It then considers ERM in the broader context of corporate governance generally. This discussion reflects on ERM techniques for corporate boards …

Promoting Commercial Law Reform In Eastern Europe, Samuel Bufford

Faculty Scholarship

This article is my account of what I did in a decade of advising governments and teaching judicial seminars on commercial law matters in Central and Eastern Europe, beginning in 1991. This article contains my individual reflections on more than a dozen visits to developing countries in Central and Eastern Europe to advise governments and to educate their judges, and several visits of judges from some of those countries to the United States. In many ways, my experiences are typical of United States judges who have done the same kind of work in developing countries. In some ways, my experiences …

The Costs Of Consensus In Statutory Construction, Ethan J. Leib, Michael Serota

Faculty Scholarship

Finding methodological consensus for statutory interpretation cases is all the rage these days.1 Some in the academy sing the praises of a singular judicial approach to questions of statutory interpretation and bemoan the frustrations associated with judges implementing a mélange of interpretive techniques. And now, thanks to Abbe Gluck’s authoritative article, Laboratories of Statutory Interpretation, proponents of interpretive uniformity have evidence that some state courts seem to be applying methodological stare decisis to decide questions of statutory interpretation. After exhaustive reading and analysis of state statutory interpretation cases—cases that have received far less attention than their federal counterparts—Gluck describes several …

The Emperor's Clothes: Evaluating Head Of State Immunity Under International Law, Mary Margaret Penrose

Faculty Scholarship

To date, most attempts at prosecuting heads of state have fallen short. At best, such attempts, even the modern attempts stretching from Iraq to Yugoslavia to Sierra Leone, have occurred under less than ideal circumstances, often far, far away from the actual place of alleged crime, or so distant in time to have lost some of its meaning. While academics, international lawyers and human rights advocates all praise the "Pinochet precedent" as paving the way for prosecuting deposed despots and ending the luxurious exiles of former dictators, in the end Pinochet was released from custody and returned home to Chile …

Public Opinion, Cultural Change, And Constitutional Adjudication, Calvin R. Massey

Faculty Scholarship

No abstract provided.