Digital Commons Network^™

How Markets Work: The Lawyer’S Version, Mitu Gulati, W. Mark C. Weidemaier

Faculty Scholarship

In this article, we combine two sources of data to shed light on the nature of transactional legal work. The first consists of stories about contracts that circulate widely among elite transactional lawyers. Surprisingly, the stories portray lawyers as ineffective market actors who are uninterested in designing superior contracts, who follow rather than lead industry standards, and who depend on governments and other outside actors to spur innovation and correct mistakes. We juxtapose these stories against a dataset of sovereign bond contracts produced by these same lawyers. While the stories suggest that lawyers do not compete or design innovative contracts, …

“The [Judicial] Beatings Will Continue Until Morale Improves”: The Prisoner's Dilemma Of Cooperative Discovery And Proposals For Improved Morale, Paul W. Grimm, Heather Leigh Williams

Faculty Scholarship

No abstract provided.

The Problem Of Holdout Creditors In Eurozone Sovereign Debt Restructuring, Mitu Gulati, Lee C. Buchheit, Ignacio Tirado

Faculty Scholarship

The Eurozone official sector has declared that the belated restructuring of Greek bonds held by private sector creditors in 2012 was a “unique and exceptional” event, never, ever to be repeated in any other Eurozone country. Maybe so. But if this assurance proves in time to be as fragile as the official sector’s prior pronouncements on the subject of “private sector involvement” in Eurozone sovereign debt problems, any future Eurozone debt restructuring will be surely plagued by the problem of non-participating creditors --- holdouts. Indeed, it is the undisguised fear of holdouts and the prospect of a messy, Argentine-style debt …

Brief Of Federalism Scholars As Amici Curiae In Support Of Respondent Windsor, Ernest A. Young

Faculty Scholarship

No abstract provided.

Ring-Fencing, Steven L. Schwarcz

Faculty Scholarship

“Ring-fencing” is often touted as a regulatory solution to problems in banking, finance, public utilities, and insurance. However, both the precise meaning of ring-fencing, as well as the nature of the problems that ring-fencing regulation purports to solve, are ill defined. This article examines the functions and conceptual foundations of ring-fencing. In a regulatory context, the term can best be understood as legally deconstructing a firm in order to more optimally reallocate and reduce risk. So utilized, ring-fencing can help to protect public-benefit activities performed by private-sector firms, as well as to mitigate systemic risk and the too-big-to-fail problem inherent …

Sustainable Production Of Swine: Putting Lipstick On A Pig?, Michelle B. Nowlin

Faculty Scholarship

No abstract provided.

The Crucial But (Potentially) Precarious Position Of The Chief Compliance Officer, Deborah A. Demott

Faculty Scholarship

This Article, written for a symposium on compliance issues in financial-services firms, focuses on the role of the chief compliance officer (“CCO”). Contrasting the position with that held by a firm’s general counsel or Chief Legal Officer (CLO), the article argues that a CCO’s position holds distinct challenges. Additionally, although internal compliance systems and personnel may be characterized as functional substitutes for external regulation, assessing the strengths and weaknesses of internal compliance requires a willingness to look deep within firms. The article argues that the law and regulation may enhance firms’ incentives to invest in effective internal compliance but may …

The End Of Annulment, Kerry Abrams

Faculty Scholarship

No abstract provided.

Citizen Spouse, Kerry Abrams

Faculty Scholarship

Marriage and citizenship have a complicated relationship to one another. Marriage is often the primary way in which a person can exercise and demonstrate his or her identity under law, by claiming legal benefits and by performing legal obligations. This Essay examines the history of one particularly salient example of marriage-as-citizenship — the derivative domicile rule — and uses this history to consider how the relationship between marriage and citizenship has changed and developed over time. The derivative domicile rule linked a woman’s domicile, and her state citizenship along with all the rights and obligations it carried, with her husband’s …

The Harvest Of Ministry: Exploring The Ministry Of Women Religious In Cleveland, Robert L. Fischer

Faculty Scholarship

Women religious serve in a range of ministries, often with the most disenfranchised in society. The nature of sisters' ministries has often been reduced to its external character – providing education, health care, or social services. What has been less understood is the enduring nature of the forces underlying these ministries. This study draws on six focus group conversations involving 33 Catholic sisters. The study surfaces key themes that frame a better understanding of the work of today's women religious. These themes can be adapted for others who seek to work with people in need.

Punitive Preventive Justice: A Critique, Bernard E. Harcourt

Faculty Scholarship

This chapter identifies the origins of contemporary preventive endeavour in the work of the RAND Corporation in America, which developed highly technical studies of crime prevention based upon systems analysis. It suggests that RAND promoted a decidedly punitive style of prevention based upon policing and punishment that is replicated in modern ‘punitive preventive measures’. It criticizes these measures, emphasizing the perils they pose and the weakness of their empirical foundations. Most worryingly, these measures typically claim an apolitical, neutral emphasis on efficiency that fails to engage with the political values underlying them. In so doing, it tends to displace much …

The Tragedy Of The Anticommons: A Concise Introduction And Lexicon, Michael Heller

Faculty Scholarship

This article gives a concise introduction to the ‘tragedy of the anticommons.’ The anticommons thesis is simple: when too many people own pieces of one thing, nobody can use it. Usually, private ownership creates wealth. But too much ownership has the opposite effect – it leads to wasteful underuse. This is a free market paradox that shows up all across the global economy. If too many owners control a single resource, cooperation breaks down, wealth disappears, and everybody loses. Conceptually, underuse in an anticommons mirrors the familiar problem of overuse in a ‘tragedy of the commons.’ The field of anticommons …

Desistance And Legitimacy: The Impact Of Offender Notification Meetings On Recidivism Among High Risk Offenders, Andrew V. Papachristos, Danielle M. Wallace, Tracey L. Meares, Jeffrey Fagan

Faculty Scholarship

Objective: Legitimacy-based approaches to crime prevention operate under the assumption that individuals — including violent offenders — are more likely to comply with the law when they believe that the law and its agents are legitimate and act in ways that seem inherently “fair” and “just.” While mounting evidence finds an association between such legitimacy-based programs and reductions in aggregate levels of crime and violence, no study has investigated whether such programs influence individual offending. This study evaluates the effectiveness of one such program — Project Safe Neighborhoods’ (PSN) Offender Notification Meetings — at reducing individual recidivism among a population …

Fee Effects, Kathryn Judge

Faculty Scholarship

Intermediaries are a pervasive feature of modern economies. This article draws attention to an under-theorized cost arising from the use of specialized intermediaries – a systematic shift in the mix of transactions consummated. The interests of intermediaries are imperfectly aligned with the parties to a transaction. Intermediaries seek to maximize their fees, a transaction cost from the perspective of the parties. Numerous factors, including the requirement that a transaction create value in excess of the associated fees to proceed and an intermediary’s interest in maintaining a good reputation, constrain an intermediary’s tendency to use its influence in a self-serving manner. …

I Like To Pay Taxes: Taxpayer Support For Government Spending And The Efficiency Of The Tax System, Yair Listokin, David M. Schizer

Faculty Scholarship

Why do people pay taxes? The simplest answer is that they have a legal obligation to do so. But it has long been recognized that this legal obligation alone provides an inadequate explanation for taxpaying behavior, just as legal obligations generally offer an inadequate explanation for most law-abiding activity.Another answer, then, is that some people pay taxes because – like Oliver Wendell Holmes – they like to do so. In other words, they appreciate that the government provides a vast array of public goods, such as rule of law, roads, schools, and aid to the poor, and find satisfaction in …

Interbank Discipline, Kathryn Judge

Faculty Scholarship

As banking has evolved over the last three decades, banks have become increasingly interconnected. This Article draws attention to an effect of this development that has important policy ramifications yet remains largely unexamined – a dramatic rise in interbank discipline. The Article demonstrates that today's large, complex banks have financial incentives to monitor risk taking at other banks, They also have the infrastructure, competence, and information required to be fairly effective monitors and mechanisms through which they can respond when a bank changes its risk profile. Interbank discipline thus affects bank risk taking, discouraging banks from taking some types of …

Sharing The Risks And Rewards Of Economic Migration, Anu Bradford

Faculty Scholarship

International cooperation on economic migration has been difficult to achieve. The interests of emigration countries ("source countries") and immigration countries ("destination countries') seem impossible to align. These countries disagree on who should migrate: source countries resist migration that leads to a brain drain, while destination countries welcome these very migrants given that they are likely to be the most productive citizens and the least likely to become fiscal burdens on the destination country. In addition, destination countries resist migration that leads to domestic unemployment through labor replacement. As a result, international economic migration remains restricted at a substantial cost to …

"Children Are Different": Constitutional Values And Justice Policy, Elizabeth S. Scott

Faculty Scholarship

This essay explores the importance for Eighth Amendment jurisprudence and for juvenile crime regulation of Miller v. Alabama (2012) and two earlier Supreme Court opinions rejecting harsh sentences for juveniles. It argues that the Court has broken new ground in defining juveniles as a category of offenders who are subject to special Eighth Amendment protections. In Miller and in Graham v. Florida (2010) particularly, the Court has applied to juveniles' non-capital sentences the rigorous proportionality review that, for adults, has been reserved for death sentences. The essay then turns to the implications of the opinions for juvenile crime policy, arguing …

Malpractice Mobs: Medical Dispute Resolution In China, Benjamin L. Liebman

Faculty Scholarship

China has experienced a surge in medical disputes in recent years, on the streets and in the courts. Many disputes result in violence. Quantitative and qualitative empirical evidence of medical malpractice litigation and medical disputes in China reveals a dynamic in which the formal legal system operates in the shadow of protest and violence. The threat of violence leads hospitals to settle claims for more money than would be available in court and also influences how judges handle cases that do wind up in court. The detailed evidence regarding medical disputes presented in this Essay adds depth to existing understanding …

Accepting The Limits Of Tax Law And Economics, Alex Raskolnikov

Faculty Scholarship

This Article explores the limits of tax law and economics, attributing them to the unique complexity of the tax optimization problem. Designers of the optimal tax system must account for the impossibility of deterring socially undesirable behavior, provide for redistribution, and minimize social costs on the basis of assumptions that are laden with deeply contested value judgments, pervasive empirical uncertainty, or both. Given these challenges, it is hardly surprising that economic theory has a much weaker connection to the content of our tax laws and their enforcement than it does to the content and enforcement of many other legal regimes. …

A Conversation With Justice Ruth Bader Ginsburg, Ruth Bader Ginsburg, Gillian E. Metzger, Abbe Gluck

Faculty Scholarship

Professor Gillian Metzger: Katherine, thank you for that wonderful overview of all that the Justice has achieved and the history of Columbia Law School. And I want to apologize for those to whom I am showing my back, but this will allow us to have more of a conversation with the Justice.

Justice, thank you so much for being with us today. It is a real privilege for us to get to talk to you this way, and we know for the entire audience. You have had – as you have now heard (LAUGHS) – an amazing and just tremendously …

The Presumption Of Constitutionality And The Individual Mandate, Gillian E. Metzger, Trevor W. Morrison

Faculty Scholarship

Every American law student learns that there is a difference between a statute's meaning and its constitutionality. A given case might well present both issues, but law students are taught that the questions are distinct and that their resolution requires separate analyses. This is all for good reason: the distinction between statutory meaning and constitutional validity is both real and important. But it is not complete. Any approach to statutory interpretation depends on a view about the appropriate role of the judiciary (or other institutional interpreter) in our constitutional system; "[a]ny theory of statutory interpretation is at base a theory …

Administrative Constitutionalism, Gillian E. Metzger

Faculty Scholarship

The U.S. Food and Drug Administration adopts a rule requiring tobacco companies to include graphic images warning of the health risks associated with smoking, defending the rule at length against the claim it violates the First and Fifth Amendments. The Department of Education and the Department of Justice (DOJ) jointly issue guidance explaining how elementary and secondary schools can voluntarily consider race consistently with governing constitutional law. The Office of Legal Counsel (OLC) in DOJ issues a memorandum to the Attorney General concluding that the President had constitutional authority to commit U.S. forces as part of the NATO military campaign …

The Shale Oil And Gas Revolution, Hydraulic Fracturing, And Water Contamination: A Regulatory Strategy, Thomas W. Merrill, David M. Schizer

Faculty Scholarship

The United States has surpassed Russia as the world's top natural gas producer, and according to the world's most respected energy forecaster, the U.S. will also overtake Saudi Arabia as the largest oil producer by 2020. This surge in U.S. oil and gas production would have seemed wildly improbable a decade ago. It flows from a revolution in U.S. oil and gas production. Energy companies have learned to tap previously inaccessible oil and gas in shale and other impermeable (or "tight") rock formations. To do so, they use "hydraulic fracturing" ("fracturing" or "fracking"), pumping fluid into shale at high pressure …

The Regulation Of Race In Science, Kimani Paul-Emile

Faculty Scholarship

The overwhelming majority of biological scientists agree that there is no such thing as race among modern humans. Yet, scientists regularly deploy race in their studies, and federal laws and regulations currently mandate the use of racial categories in biomedical research. Legal commentators have tried to make sense of this paradox primarily by looking to equal protection strict scrutiny analysis. However, the colorblind approach that attends this doctrine — which many regard as synonymous with invalidation — does not offer a particularly useful way to think about the use of race in research. It offers no way to address how …

Regulating Ex Post: How Law Can Address The Inevitability Of Financial Failure, Iman Anabtawi, Steven L. Schwarcz

Faculty Scholarship

Unlike many other areas of regulation, financial regulation operates in the context of a complex interdependent system. The interconnections among firms, markets, and legal rules have implications for financial regulatory policy, especially the choice between ex ante regulation aimed at preventing financial failure and ex post regulation aimed at responding to that failure. Regulatory theory has paid relatively little attention to this distinction. Were regulation to consist solely of duty-imposing norms, such neglect might be defensible. In the context of a system, however, regulation can also take the form of interventions aimed at mitigating the potentially systemic consequences of a …

Algorithms And Speech, Stuart M. Benjamin

Faculty Scholarship

One of the central questions in free speech jurisprudence is what activities the First Amendment encompasses. This Article considers that question in the context of an area of increasing importance – algorithm-based decisions. I begin by looking to broadly accepted legal sources, which for the First Amendment means primarily Supreme Court jurisprudence. That jurisprudence provides for very broad First Amendment coverage, and the Court has reinforced that breadth in recent cases. Under the Court’s jurisprudence the First Amendment (and the heightened scrutiny it entails) would apply to many algorithm-based decisions, specifically those entailing substantive communications. We could of course adopt …

They Were Meant For Each Other: Professor Edward Cooper And The Rules Enabling Act, Mark R. Kravitz, David F. Levi, Lee H. Rosenthal, Anthomy J. Scricia

Faculty Scholarship

No abstract provided.

Text, History, And Tradition: What The Seventh Amendment Can Teach Us About The Second, Darrell A. H. Miller

Faculty Scholarship

In District of Columbia v. Heller and McDonald v. City of Chicago, the Supreme Court made seemingly irreconcilable demands on lower courts: evaluate Second Amendment claims through history, avoid balancing, and retain as much regulation as possible. To date, lower courts have been unable to devise a test that satisfies all three of these conditions. Worse, the emerging default candidate, intermediate scrutiny, is a test that many jurists and scholars consider exceedingly manipulable.

This Article argues that courts could look to the Supreme Court’s Seventh Amendment jurisprudence, and in particular the Seventh Amendment’s “historical test,” to help them devise a …

Protecting The Right Of Citizens To Aggregate Small Claims Against Businesses, Paul D. Carrington

Faculty Scholarship

No abstract provided.