Digital Commons Network^™

State Authority To Preempt Local Laws Regulating Renewable Energy Projects, Michael B. Gerrard, Edward Mctiernan

Faculty Scholarship

The New York State Energy Plan, announced by Gov. Andrew Cuomo in 2015, calls for a doubling to 50 percent of the portion of the electricity used in the state that comes from renewable sources by 2030. This would lower greenhouse gas emissions, create jobs, and reduce the use of fossil fuels, especially natural gas.

Much of this new renewable energy would be generated by wind and solar projects. Some if it would be from wind facilities to be built offshore in the Atlantic Ocean; the rest would be on the land.

New York Environmental Legislation In 2017, Michael B. Gerrard, Edward Mctiernan

Faculty Scholarship

In 2017, New York State enacted multiple laws that tackle aspects of two major environmental issues facing the state: protecting water quality and advancing the state’s clean energy goals. In addition, Governor Andrew Cuomo signed laws concerning oil tankers on the Hudson, elephant welfare, food waste, and lead paint. He also approved a moratorium barring New York City’s plastic bag fee from taking effect. This annual survey reports on these developments and other environmental laws enacted in 2017.

Holocaust Art Disputes: The Holocaust Expropriated Art Recovery Act Of 2016, Herbert I. Lazerow

Faculty Scholarship

The Holocaust Expropriated Recovery Act of 2016 (HEAR) purports to extend the statute of limitations for actions to recover art and certain other items stolen during the Holocaust. The new statute of limitations would be either the old statute or a six-years-from-actual-discovery statute, whichever is longer. This article analyzes the likely results of that law. It sets forth the problems leading to HEAR’s enactment, including the typical parties to these controversies, the informational difficulties confronting both claimants and purchasers of art, and the elements of recovery suits, and discusses the functions of statutes of limitations and adverse possession and prescription. …

Judicial Appraisals Of Risk Assessment In Sentencing, John Monahan, Ann Metz, Brandon L. Garrett

Faculty Scholarship

No abstract provided.

International Corporate Prosecutions, Brandon L. Garrett

Faculty Scholarship

No abstract provided.

A Pioneer In Forensic Science Reform: The Work Of Paul Giannelli, Brandon L. Garrett

Faculty Scholarship

No abstract provided.

Individual Autonomy In Corporate Law, Elisabeth De Fontenay

Faculty Scholarship

The field of corporate law is riven with competing visions of the corporation. This Article seeks to identify points of broad agreement by negative implication. It examines two developments in corporate law that have drawn widespread criticism from corporate law scholars: the Supreme Court's recognition of corporate religious rights in Burwell v. Hobby Lobby and the Nevada legislature's decision to eliminate mandatory fiduciary duties for corporate directors and officers. Despite their fundamental differences, both resulted in expanding individual rights or autonomy within the corporation-for shareholders and managers, respectively.

The visceral critiques aimed at these two developments suggest a broadly shared …

Precedent And The Semblance Of Law, Stephen E. Sachs

Faculty Scholarship

Like its author, Randy Kozel's *Settled Versus Right* is insightful, thoughtful, and kind, deeply committed to improving the world that it sees. But despite its upbeat tone, the book paints a dark picture of current law and the current Court. It depicts a society whose judges are, in a positive sense, *lawless* -- not because they disregard the law, but because they are without law, because they have no shared law to guide them. What they do share is an institution, a Court, whose commands are generally accepted. So *Settled Versus Right* makes the best of what we've got, reorienting …

Introduction: Symposium On “Forensics, Statistics, And Law”, Brandon L. Garrett

Faculty Scholarship

No abstract provided.

Martin, Ghana, And Global Legal Studies, H. Timothy Lovelace Jr.

Faculty Scholarship

This brief essay uses global legal studies to reconsider Dr. Martin Luther King, Jr.'s activism after Gayle v. Browder. During this undertheorized portion of King's career, the civil rights leader traveled the world and gained a greater appreciation for comparative legal and political analysis. This essay explores King's first trip abroad and demonstrates how King's close study of Kwame Nkrumah's approaches to law reform helped to lay the foundation for watershed moments in King's own life.

In To Redeem the Soul of America: The Southern Christian Leadership Conference and Martin Luther King, Jr., renowned civil rights scholar and author, Adam …

The Price Of Law: The Case Of The Eurozone's Collective Action Clauses, Elena Carletti, Paolo Colla, Mitu Gulati, Steven Ongena

Faculty Scholarship

Do markets value contract protections? And does the quality of a legal system affect such valuations? To answer these questions we exploit a unique experiment whereby, after January 1, 2013, newly issued sovereign bonds of Eurozone countries under domestic law had to include Collective Action Clauses (CACs) specifying the minimum vote needed to modify payment terms. We find that CAC bonds trade at lower yields than otherwise similar no-CAC bonds; and that the quality of the legal system matters for this differential. Hence, markets appear to see CACs as providing protection against the legal risk embedded in domestic-law sovereign bonds.

When Terrorists Govern: Protecting Civilians In Conflicts With State-Building Armed Groups, Mara R. Revkin

Faculty Scholarship

Many existing U.S. counter-terrorism policies, including those governing targeting and detention, rely on an empirical assumption that terrorist groups are primarily military organizations. This assumption may be appropriate in the case of al-Qaeda, but it fails to describe terrorist groups that engage not only in warfare but also in governance and state-building such as the Islamic State, a self-declared “caliphate” that—at the height of its expansion in 2014—claimed sovereignty over an estimated 34,000 square miles and 10 million civilians. This Article identifies a category of “state-building” terrorist groups that can be distinguished by the following characteristics: (1) the presence of …

Trade, Redistribution, And The Imperial Presidency, Timothy Meyer

Faculty Scholarship

No abstract provided.

The Offshore Tax Enforcement Dragnet, Shu-Yi Oei

Faculty Scholarship

Taxpayers who hide assets abroad to evade taxes present a serious enforcement challenge for the United States. In response, the United States has developed a family of initiatives that punish and rehabilitate non-compliant taxpayers, raise revenues, and require widespread reporting of offshore financial information by financial institutions and taxpayers. Yet, while these initiatives help catch willful tax cheats, they have also adversely affected immigrants, Americans living abroad, and “accidental Americans.”

This Article critiques the United States’ offshore tax enforcement initiatives, such as the Foreign Account Tax Compliant Act and the Internal Revenue Service’s offshore voluntary disclosure programs. It argues that …

Changing The First Lady's Mystique: Defining The First Lady's Legal Role And Upending Gender Norms, Ashlee A. Paxton-Turner

Faculty Scholarship

This Article explores the lack of formal guidelines governing the First Lady by first considering the history of the role and how the three branches of government have typically dealt with the role. Attention is also given to the possible intersection with the anti-nepotism statute when and if the First Lady acts as an advisor to the President. This Article then goes on to suggest that this lack of formality has allowed gender norms to govern the role. In an era where women’s rights have resurfaced as a central theme in political discourse, this Article concludes by suggesting some possible …

Providing Access To Confidential Research Data Through Synthesis And Verification: An Application To Data On Employees Of The U.S. Federal Government, Andrés F. Barrientos, Alexander Bolton, Tom Balmat, Jerome P. Reiter, John M. De Figueiredo, Ashwin Machanavajjhala, Yan Chen, Charley Kneifel, Mark Delong

Faculty Scholarship

Data stewards seeking to provide access to large-scale social science data face a difficult challenge. They have to share data in ways that protect privacy and confidentiality, are informative for many analyses and purposes, and are relatively straightforward to use by data analysts. One approach suggested in the literature is that data stewards generate and release synthetic data, that is, data simulated from statistical models, while also providing users access to a verification server that allows them to assess the quality of inferences from the synthetic data. We present an application of the synthetic data plus verification server approach to …

A Blueprint For A New American Trade Policy, Timothy Meyer, Ganesh Sitaraman

Faculty Scholarship

In this paper, we offer ten recommendations on how to reform American trade policy. These reforms respond to three fundamental challenges: (1) our trade bureaucracy is poorly designed to craft and execute a trade policy that pursues multiple important ends, including economic and national security; (2) the domestic process through which the United States makes trade agreements provides preferential access to certain interest groups (capital and corporations) but not others; and (3) U.S. trade policy has failed to grapple with the distributional consequences of trade liberalization. The first set of reforms addresses the domestic trade policymaking process. These include restructuring …

Binding Leviathan: Credible Commitment In An Authoritarian Regime, Roderick M. Hills Jr., Shitong Qiao

Faculty Scholarship

The problem of credible commitment dogs every government, whether democratic or authoritarian. Authoritarian bureaucracies face special credible commitment problems. Fear that local officials will build up a local power base has historically induced the leadership of China, Imperial and Communist alike, to frequently transfer local officials among subnational jurisdictions. Such frequent transfers undermine those officials’ capacity to make the credible commitments that officials with more stable tenure can make with ease. Moreover, authoritarian regimes discourage the development of independent institutions—like investor-owned banks or locally elected legislatures—that are independent from local executive officials and that might otherwise act as monitors and …

Foreword: Introduction To Decentralization And Development, Shitong Qiao, Richard A. Epstein

Faculty Scholarship

On March 14–15, 2017, a group of Asian and American scholars working in the areas of law, economics, and political science gathered at the University of Hong Kong Faculty of Law. There they debated and discussed decentralization and development at a conference co-sponsored by New York University’s Classical Liberal Institute and the University of Hong Kong Faculty of Law’s Centre for Chinese Law. What does decentralization mean? How do we best measure decentralization? Is interjurisdictional competition a race to the bottom or a race to the top? Is decentralization desirable in the context of China and other jurisdictions? This symposium …

Federalism As A Check On Executive Authority: State Public Litigation, Executive Authority, And Political Polarization, Ernest A. Young

Faculty Scholarship

No abstract provided.

An Exempt Status Sorting Hat, Richard Schmalbeck

Faculty Scholarship

No abstract provided.

Reframing Intellectual Property Rights With Fewer Distortions Of The Trade Paradigm, Jerome H. Reichman

Faculty Scholarship

No abstract provided.

A Persistência Das Desigualdades Raciais No Sistema De Justiça Criminal Dos Eua, George Bisharat

Faculty Scholarship

No abstract provided.

Erie As A Way Of Life, Ernest A. Young

Faculty Scholarship

No abstract provided.

Beyond The Bosses' Constitution: The First Amendment And Class Entrenchment, Jedediah Purdy

Faculty Scholarship

The Supreme Court’s “weaponized” First Amendment has been its strongest antiregulatory tool in recent decades, slashing campaign-finance regulation, public-sector union financing, and pharmaceutical regulation, and threatening a broader remit. Along with others, I have previously criticized these developments as a “new Lochnerism.” In this Essay, part of a Columbia Law Review Symposium, I press beyond these criticisms to diagnose the ideological outlook of these opinions and to propose an alternative. The leading decisions of the antiregulatory First Amendment often associate free speech with a vision of market effi­ciency; but, I argue, closer to their heart is antistatist fear of entrench­ment …

Criminally Bad Management, Samuel W. Buell

Faculty Scholarship

Because of their leverage over employees, corporate managers are prime targets for incentives to control corporate crime, even when managers do not themselves commit crimes. Moreover, the collective actions of corporate management — producing what is sometimes referred to as corporate culture — can be the cause of corporate crime, not just a locus of the failure to control it. Because civil liability and private compensation arrangements have limited effects on management behavior — and because the problem is, after all, crime — criminal law is often expected to intervene. This handbook chapter offers a functional explanation for corporate criminal …

U.S. War Powers And The Potential Benefits Of Comparativism, Curtis A. Bradley

Faculty Scholarship

There is no issue of foreign relations law more important than the allocation of authority over the use of military force. This issue is especially important for the United States given the frequency with which it is involved in military activities abroad. Yet there is significant uncertainty and debate in the United States over this issue — in particular, over whether and to what extent military actions must be authorized by Congress. Because U.S. courts in the modern era have generally declined to review the legality of military actions, disputes over this issue have had to be resolved, as a …

Treaty Exit And Intra-Branch Conflict At The Interface Of International And Domestic Law, Laurence R.. Helfer

Faculty Scholarship

This chapter, forthcoming in the Oxford Handbook of Comparative Foreign Relations Law, considers two important and unresolved issues raised by unilateral withdrawal from or denunciation of treaties. The first issue concerns whether treaty obligations end in both international and domestic law after a state leaves a treaty. Exit often produces the same effects in both legal systems, but some withdrawals bifurcate a treaty’s status, ending its obligations in domestic law but continuing to bind the state internationally, or vice versa. The second issue concerns denunciations initiated by different branches of government. The decision to withdraw from a treaty is usually …

Why Do Prosecutors Say Anything? The Case Of Corporate Crime, Samuel W. Buell

Faculty Scholarship

Criminal procedure law does not require prosecutors to speak outside of court. Professional regulations and norms discourage and sometimes prohibit prosecutors from doing so. Litigation often rewards strategic and tactical maintenance of the element of surprise. Institutional incentives encourage bureaucrats, especially those not bound by procedural requirements of administrative law, to decline to commit themselves to future action. In the always exceptional field of corporate crime, however, the Department of Justice and federal line prosecutors have developed practices of signaling and describing their exercise of discretion through detailed press releases, case filings, and policy documents. This contribution to a symposium …

The Myth Of The Ideal Investor, Elisabeth De Fontenay

Faculty Scholarship

Critiques of specific investor behavior often assume an ideal investor against which all others should be compared. This ideal investor figures prominently in the heated debates over the impact of investor time horizons on firm value. In much of the commentary, the ideal is a longterm investor that actively monitors management, but the specifics are typically left vague. That is no coincidence. The various characteristics that we might wish for in such an investor cannot peacefully coexist in practice.

If the ideal investor remains illusory, which of the real-world investor types should we champion instead? The answer, I argue, is …