Digital Commons Network^™

The Fourth Amendment And Surveillance In A Digital World, Arthur Leavens

Faculty Scholarship

Technology has transformed government surveillance and opened traditionally private information to official scrutiny. The current privacy-based approach to the Fourth Amendment is unable to cope with the changes. This Article offers a solution to the problems that technological surveillance techniques present. Starting with the introduction of the approach in Katz, the Article reviews the development of privacy-based approach. It then looks at three 21st century Supreme Court cases that grappled with applying the Katz test to advanced technological surveillance techniques: Kyllo, Quon, and Jones. These cases demonstrate the problems that the privacy-based approach creates and the …

When The Story Is Too Good To Be True: A Lawyer's Role In Resisting The Lure Of Narrative, Jeanne Kaiser, Scott Brown

Faculty Scholarship

Storytelling is important in legal persuasion. The power of a good story is why an attorney strives to mold the facts of a case into a tale with clear heroes and villains. High profile bullying stories and the reaction to those stories by prosecutors, legislators, and the legal academy provide examples of lawyers’ susceptibility to the power of an emotional narrative. This Article explores how social problems, like those relating to Phoebe Prince, Tyler Clementi, and Meagan Meiers, are likely to seem more real and pressing when presented in human terms as opposed to the abstract consequences.

Where Truth And The Story Collide: What Legal Writers Can Learn From The Experience Of Non-Fiction Writers About The Limits Of Storytelling, Jeanne Kaiser

Faculty Scholarship

This Chapter examines what can be gained and what can be lost by using storytelling in legal writing. After reviewing some basic principles of legal storytelling, the Chapter reviews some lessons that can be learned from the experience of the New Journalists who adopted literary techniques in their non-fiction work. In the end, the Author concludes that while there is much value in using the tools of fiction in legal writing, it is only with a blend of narrative and analysis that we most successfully do our jobs as lawyers.

Competition Policy And Free Trade: Antitrust Provisions In Ptas, Anu Bradford, Tim Büthe

Faculty Scholarship

Trade agreements increasingly contain provisions concerning ‘behind-the-border’ barriers to trade, often beyond current World Trade Organization (WTO) commitments (Dur, Baccini and Elsig 2014). Today’s preferential trade agreements (PTAs) may include, for instance, rules regarding ‘technical’ barriers to trade that go beyond the WTO’s Agreement on Technical Barriers to Trade (TBT Agreement), accelerating the replacement of differing national product safety standards with common international standards and thus reducing the trade-inhibiting effect of regulatory measures (Buthe and Mattli 2011; World Trade Organization 2012). Today’s PTAs may also go beyond WTO rules in prohibiting preferences for domestic producers in government procurement (Arrowsmith and …

The Law Of Police, Richard H. Mcadams, Dhammika Dharmapala, Nuno Garoupa

Faculty Scholarship

Some Fourth Amendment doctrines distinguish between searches executed by police and others, being more demanding of the former. We explore these distinctions by offering a simple theory for how "police are different," focusing on self-selection. Those most attracted to the job of policing include those who feel the most intrinsic satisfaction from facilitating the punishment of wrongdoers. Thus, we expect police to have more intensely punitive preferences, on average, than the public or other governmental actors. Some experimental evidence supports this prediction. In turn, stronger punishment preferences logically lower one's threshold of doubt --the perceived probability of guilt at which …

Dictionaries 2.0: Exploring The Gap Between The Supreme Court And Courts Of Appeals, James J. Brudney, Lawrence Baum

Faculty Scholarship

The remarkable rise in dictionary usage by the Supreme Court since themid-1980s has been a subject of considerable scholarly and media interest. Wepublished an article in November 2013 that explored the Court’s new dictionary culture in depth from empirical and doctrinal perspectives. In a Yale Law Journal Note one year later, John Calhoun embraced some of our findings, criticized others, and—importantly—broadened the inquiry to identify asizeable gap in overall frequency of citation to dictionaries between the Supreme Court and the federal courts of appeals.

This gap in dictionary usage is our primary focus here. Previously we analyzed nearly 700 Supreme …

Expectant Fathers, Abortion, And Embryos, Dara Purvis

Faculty Scholarship

One thread of abortion criticism, arguing that gender equality requires that men be allowed to terminate legal parental status and obligations, has reinforced the stereotype of men as uninterested in fatherhood. As courts facing disputes over stored pre-embryos weigh the equities of allowing implantation of the pre-embryos, this same gender stereotype has been increasingly incorporated into a legal balancing test, leading to troubling implications for ART and family law.

Probability And Punishment: How To Improve Sentencing By Taking Account Of Probability, Jacob Schuman

Faculty Scholarship

The United States Sentencing Guidelines place little emphasis on probability. Instead, the Guidelines recommend a sentence in each case based only on whether certain facts about the offender’s crime exceed a “threshold” level of likelihood. Guidelines sentences therefore fail to reflect the precise odds of each defendant’s wrongdoing, which makes them both inefficient and unfair. This model of decision-making is particularly problematic in drug sentencing, where judges often impose lengthy sentences based on drug quantity calculations that carry a high risk of error. To address these problems, district courts should exercise their discretion and policymakers should implement reforms that incorporate …

Unavoidable Aesthetic Judgments In Copyright Law: A Community Of Practice Standard, Ben Depoorter, Robert Kirk Walker

Faculty Scholarship

No abstract provided.

Preface, Scott Dodson

Faculty Scholarship

No abstract provided.

Vaccines, Measles And Rights, Dorit Rubenstein Reiss

Faculty Scholarship

No abstract provided.

From Contract To Status: Collaboration And The Evolution Of Novel Family Relationships, Elizabeth S. Scott, Robert E. Scott

Faculty Scholarship

The past decade has witnessed dramatic changes in public atti- tudes about and legal status for same-sex couples who wish to marry. These changes demonstrate that the legal conception of the family is no longer limited to traditional marriage. They also raise the possibility that other relationships – cohabiting couples and their children, voluntary kin groups, multigenerational groups, and polygamists – might gain legal recognition as families. This Article probes the challenges faced by aspiring families and the means by which they could attain their goal. It builds on the premise that the state remains committed to social-welfare criteria for …

Defining And Punishing Offenses Under Treaties, Sarah H. Cleveland, William S. Dodge

Faculty Scholarship

One of the principal aims of the U.S. Constitution was to give the federal government authority to comply with its international legal commitments. The scope of Congress's constitutional authority to implement treaties has recently received particular attention. In Bond v. United States, the Court avoided the constitutional questions by construing a statute to respect federalism, but these questions are unlikely to go away. This Article contributes to the ongoing debate by identifying the Offenses Clause as an additional source of Congress's constitutional authority to implement certain treaty commitments. Past scholarship has assumed that the Article I power to "define …

Admin, Elizabeth F. Emens

Faculty Scholarship

This Article concerns a relatively unseen form of labor that affects us all, but that disproportionately burdens women: admin. Admin is the office type work – both managerial and secretarial – that it takes to run a life or a household. Examples include completing paperwork, making grocery lists, coordinating schedules, mailing packages, and handling medical and benefits matters. Both equity and efficiency are at stake here. Admin raises distributional concerns about those people – often women – who do more than their share of this work on behalf of others. Even when different-sex partners who both work outside the home …

Third-Party Beneficiaries And Contractual Networks, Alan Schwartz, Robert E. Scott

Faculty Scholarship

An increasing trend of economic agents is to form productive associations such as networks, platforms, and other hybrids. Subsets of these agents contract with each other to further their network project and these contracts can create benefits for, or impose costs on, agents who are not contract parties. Contract law regulates third party claims against contract parties with the third-party beneficiary doctrine, which directs courts to ask whether the contracting parties "intended" to benefit a particular third party. We show here what courts do with third party claims when network members fail to perform for third parties and what the …

Presidential Administration And The Traditions Of Administrative Law, Thomas W. Merrill

Faculty Scholarship

American administrative law has long been characterized by two distinct traditions: the positivist and the process traditions. The positivist tradition emphasizes that administrative bodies are created by law and must act in accordance with the requirements of the law. The process tradition emphasizes that agencies must act in accordance with norms of reasoned decisionmaking, which emphasize that all relevant interests must be given an opportunity to express their views and agencies must explain their decisions in a public and articulate fashion. In the twentieth century, American administrative law achieved a grand synthesis of these two traditions, with the result that …

Agencies, Polarization, And The States, Gillian E. Metzger

Faculty Scholarship

Political polarization is all the rage. Yet administrative agencies are strikingly absent from leading accounts of contemporary polarization. To the extent they appear, it is largely as acted-upon entities that bear the fallout from the congressional-presidential confrontations that polarization fuels, or as the tools of presidential unilateralism. This failure to incorporate administrative agencies into polarization accounts is a major omission. Agencies possess broad grants of preexisting authority that they can use to reshape governing policy and law, often at presidential instigation, thereby putting pressure on Congress to respond. In the process, they can construct new alliances and arrangements that have …

Uncivil Obedience, Jessica Bulman-Pozen, David E. Pozen

Faculty Scholarship

Scholars and activists have long been interested in conscientious law-breaking as a means of dissent. The civil disobedient violates the law in a bid to highlight its illegitimacy and motivate reform. A less heralded form of social action, however, involves nearly the opposite approach. As a wide range of examples attest, dissenters may also seek to disrupt legal regimes through hyperbolic, literalistic, or otherwise unanticipated adherence to their formal rules.

This Article asks how to make sense of these more paradoxical protests, involving not explicit law-breaking but rather extreme law following. We seek to identify, elucidate, and call attention to …

Bank Resolution In The European Banking Union: A Transatlantic Perspective On What It Would Take, Jeffrey N. Gordon, Wolf-Georg Ringe

Faculty Scholarship

The project of creating a Banking Union is designed to overcome the fatal link between sovereigns and their banks in the Eurozone. As part of this project, political agreement for a common supervision framework and a common resolution scheme has been reached with difficulty. However, the resolution framework is weak, underfunded and exhibits some serious flaws. Further, Member States' disagreements appear to rule out a federalized deposit insurance scheme, commonly regarded as the necessary third pillar of a successful Banking Union. This paper argues for an organizational and capital structure substitute for these two shortcomings that can minimize the systemic …

Hobby Lobby: Its Flawed Interpretive Techniques And Standards Of Application, Kent Greenawalt

Faculty Scholarship

At the end of June 2014, the Supreme Court decided one of the most publicized controversies of decades. In a decision covering two cases, widely referred to as Hobby Lobby, the Court held that closely held for-profit corporations, based on their owners' religious convictions, have a right under the Religious Freedom Restoration Act (RFRA) to decline to provide employees with insurance that covers contraceptive devices that may prevent a fertilized egg "from developing any further by inhibiting its attachment to the uterus."

The result has been widely approved by those who favor an extensive scope for religious liberty and …

Commentaire De L'Article 19 De La Convention De Vienne De 1978 Sur La Succession D'État En Matière De Traités: Participation À Des Traités Signés Par L’État Prédécesseur Sous Réserve De Ratification, D’Acceptation Ou D’Approbation, Petros C. Mavroidis, Dr. Vassilis P. Tzevelekos

Faculty Scholarship

Commentary on Article 19 of the Vienna Convention on Succession of States in Respect of Treaties: Participation in Treaties Signed by the Predecessor State Subject to Ratification, Acceptance or Approval

In French
Commentaide de l'article 19 de la Convention de Vienne sur la succession d'État en matière de traités. I. CARACTÉRISTIQUES GÉNÉRALES: 1. Les points épineux: à la recherche de fondements a) L’intention du prédécesseur et l’absence de liens suffisants entre le traité multilatéral signé sous réserve de ratification, d’acceptation ou d’approbation et le territoire b) L’absence d’une pratique étoffée II. LA JUSTIFICATION ET L’UTILITÉ DE L’ARTICLE 19: 1. But …

Intermediary Influence, Kathryn Judge

Faculty Scholarship

Ronald Coase and others writing in his wake typically assume that institutional arrangements evolve to minimize transaction costs. This Article draws attention to a powerful, market-based force that operates contrary to that core assumption: Intermediary influence." The claim builds on three observations: (1) many transaction costs now take the form of fees paid to specialized intermediaries, (2) intermediaries prefer institutional arrangements that yield higher transaction fees, and (3) intermediaries are often well positioned to promote self-serving arrangements. As a result, high-fee institutional arrangements often remain entrenched even in the presence of more-efficient alternatives.

This Article uses numerous case studies from …

The Federal Reserve: A Study In Soft Constraints, Kathryn Judge

Faculty Scholarship

In response to the greatest financial crisis since the Great Depression, the Federal Reserve (the Fed) took a number of unprecedented steps to try to minimize the adverse economic consequences that would follow. From providing liquidity injections to save companies like Bear Stearns and American International Group (AIG) to committing to a prolonged period of exceptionally low interest rates and buying massive quantities of longer-term securities to further reduce borrowing costs, the Fed's response to the 2007 through 2009 financial crisis (the Crisis) has been creative and aggressive. These actions demonstrated that the Fed is uniquely powerful among federal agencies, …

Corporate Inversions And The Unbundling Of Regulatory Competition, Eric L. Talley

Faculty Scholarship

Several prominent public corporations have recently embraced a noteworthy (and newsworthy) type of transaction known as a "tax inversion." In a typical inversion, a U.S. multinational corporation ("MNC") merges with a foreign company. The entity that ultimately emerges from this transactional cocoon is invariably incorporated abroad, yet typically remains listed in U.S. securities markets under the erstwhile domestic issuer's name. When structured to satisfy applicable tax requirements, corporate inversions permit domestic MNCs eventually to replace U.S. with foreign tax treatment of their extraterritorial earnings – ostensibly at far lower effective rates.

Most regulators and politicians have reacted to the inversion …

Limiting Tax Expenditures, David M. Schizer

Faculty Scholarship

The federal government devotes over a trillion dollars each year to tax provisions that pursue "nontax" goals, such as the deduction for mortgage interest and the exclusion for employer-provided health insurance. Scaling back these "tax expenditures" should be a high priority, as many have urged. Yet too often, the same limit is suggested for a broad range of tax expenditures. In the 2013 budget deal, for instance, Congress revived a single limit on all itemized deductions called the "Pease rule." In 2012, both presidential candidates proposed their own one-size-fits-all limit. In the same year, the United Kingdom imposed a single …

Leniency In Chinese Criminal Law? Everyday Justice In Henan, Benjamin L. Liebman

Faculty Scholarship

This Article examines one year of publicly available criminal judgments from a basic-level rural county court and an intermediate court in Henan Province in order to better understand trends in routine criminal adjudication in China. I present an account of ordinary criminal justice in China that is both familiar and striking: a system that treats serious crimes, in particular those affecting State interests, harshly, while at the same time acting leniently in routine cases. Most significantly, examination of more than five hundred court decisions shows the vital role that settlement plays in criminal cases in China today. Defendants who agree …

The Struggle For Administrative Legitimacy, Jeremy K. Kessler

Faculty Scholarship

Nearly forty years ago, Professor James 0. Freedman described the American administrative state as haunted by a "recurrent sense of crisis." "Each generation has tended to define the crisis in its own terms," and "each generation has fashioned solutions responsive to the problems it has perceived." Yet "a strong and persisting challenge to the basic legitimacy of the administrative process" always returns, in a new guise, to trouble the next generation. On this account, the American people remain perennially unconvinced that administrative decisionmaking is "appropriate, proper, and just," entitled to respect and obedience "by virtue of who made the decision" …

The Future Of Direct Finance: The Diverging Paths Of Peer-To-Peer Lending And Kickstarter, Kathryn Judge

Faculty Scholarship

For centuries, the trend has been toward longer and more complex intermediation chains in a wide array of contexts. The growing length and complexity of intermediation chains were both the by-products and drivers of ever-greater globalization and specialization. In recent years, however, there has been a shift in the opposite direction. In a variety of markets, suppliers and consumers increasingly transact directly with one another. Many of these developments have arisen from technological innovations that reduce search costs and other hurdles to transacting, like verifying information and negotiating the terms of a transaction. Airbnb, Etsy, and their kin, for example, …

The Inversion Of Rights And Power, Philip A. Hamburger

Faculty Scholarship

No constitutional test is more important than the compelling-government-interest test. It is the foundation of all analysis of constitutional rights. But can a government interest really defeat a constitutional right?

The courts repeatedly say that claims of constitutional rights must give way to government interests.The courts even sometimes say that a compelling government interest justifies the infringement of a right – as when the Supreme Court asks "whether some compelling state interest ... justifies the substantial infringement of appellant's First Amendment right." In support of such doctrine, it often is said that rights are "not absolute."

This sort of analysis …

A Conversation With Edie Windsor, Edie Windsor, Suzanne B. Goldberg, Madeline M. Gomez, Andrew Chesley

Faculty Scholarship

Suzanne Goldberg [SG]: It is not often that a law school gets to welcome a rock star. But in our world, Edie Windsor is a rock star. She is one of the major civil rights plaintiffs of our lifetime, whose lawsuit challenged – and triumphed over – the federal Defense of Marriage Act. Her victory in that suit has been vital to changing the landscape of marriage equality for all Americans. It is a tremendous honor, Edie, to have you here at Columbia Law School, and we welcome you.