Digital Commons Network^™

Spinning Our Wheels And Deepening The Divide: Call For An Evidence-Based Approach To The Fish Pain Debate, Steven J. Cooke

Animal Sentience

There is vigorous ongoing debate about whether fish feel pain and have the capacity to suffer. The body of literature dedicated to the topic is increasing but what is particularly problematic is that the majority of the contributions represent opinion pieces and thus fall within the realm of advocacy. Many of the empirical research papers purporting that fish do or do not feel pain have problems with cavalier use of definitions, poor experimental design, or statistical/technical issues and tend to include advocacy statements in their interpretations. Rather than continuing to spin our wheels and deepen the divide, I would advocate …

Remembering Harvey Goldschmid, David M. Schizer

Faculty Scholarship

For me, Harvey Goldschmid and Columbia are inextricably connected. I can't think of one without the other. Harvey discovered his passion for learning as a student at the college and the law school. Only five years after graduating, Harvey returned to Columbia to join our faculty, serving for four and a half decades. When we add this time to his time as a student, it's fifty-two years. That's over 70% of his life.

But Harvey's connection to Columbia was not just long; it was deep. I can't count the number of graduates over the years who've told me he was …

Between Scylla And Charybdis: Taxing Corporations Or Shareholders (Or Both), David M. Schizer

Faculty Scholarship

The United States taxes both corporations and shareholders on corporate profits. In principle, the United States could rely on only one of these taxes, as many commentators have suggested. Although choosing to tax the corporation or its owners may seem like taking money from one pocket or the other, this Essay emphasizes a key difference: These taxes prompt different planning. Relying on one or the other mitigates some distortions and leaks, while exacerbating others. As a result, choosing which to impose is like navigating between Scylla and Charybdis.

In response, this Essay recommends using both taxes for three reasons. First, …

The Never Ending Tale: Racism And Inequality In The Era Of Broken Windows, Jonathan Oberman, Kendra Johnson

Articles

No abstract provided.

Peace Meal: A Senior Citizen's Right To Food In East Central Illinois, Jessica Aceves, Chris Wellin

Capstone Projects – Politics and Government

This study provides a formative evaluation of the Older Americans Act (OAA) Senior Nutrition Program, Peace Meal. Peace Meal provides home delivered and congregate meals for older adults in 14 counties in east central Illinois. The East Central Illinois Area Agency on Aging (ECIAAA) is a funding source for Peace Meal and advocates that the OAA Senior Nutrition Program help older adults have improved food security and reduced social isolation. Key informant interviews and focus groups provided personal stories of how people in the community access food, what dietary and nutritional elements affect their food …

Economic Crisis And The Integration Of Law And Finance: The Impact Of Volatility Spikes, Edward G. Fox, Merritt B. Fox, Ronald J. Gilson

Faculty Scholarship

The 2008 financial crisis raised puzzles important for understanding how the capital market prices common stocks and in turn, for the intersection between law and finance. During the crisis, there was a dramatic fivefold spike, across all industries, in "idiosyncratic risk" – the volatility of individual-firm share prices after adjustment for movements in the market as a whole.

This phenomenon is not limited to the most recent financial crisis.This Article uses an empirical review to show that a dramatic spike in idiosyncratic risk has occurred with every major downturn from the 1920s through the recent financial crisis. It canvasses three …

The Day Doctrine Died: Private Arbitration And The End Of Law, Myriam E. Gilles

Articles

This story begins in 1980, when a budding anti-lawsuit movement found an energetic champion in a new conservative President. Over time, the movement became a dominant feature of political life, as its narrative of activist judges, jackpot justice, and a thriving lawsuit industry stirred partisan passions. And yet, some thirty years on, it is clear that the primary legacy of the anti-lawsuit movement is the movement itself--not legislative achievements, which have been few and far between, but committed adherents, including future Supreme Court Justices, lower court judges, and business leaders.

Meanwhile, and also in the early 1980s, federal courts began …

The Meming Of Substantive Due Process, Jamal Greene

Faculty Scholarship

Substantive due process is notoriously regarded as a textual contradiction, but it is in fact redundant. The word "due" cannot be honored except by inquiring into the relationship between the nature and scope of the deprived interest and the process-whether judicial, administrative, or legislative-that attended the deprivation. The treatment of substantive due process as an oxymoron is what this Essay calls a constitutional meme, an idea that replicates through imitation within the constitutional culture rather than (necessarily) through logical persuasion. We might even call the idea a "precedent," in the nature of other legal propositions within a common law system. …

A Nonoriginalism For Originalists, Jamal Greene

Faculty Scholarship

Originalism is an ideology, not a practice. It is a brand, an affiliation, a set of background principles, an often unstated set of restorative commitments. As James Fleming says in his book, Fidelity to Our Imperfect Constitution, originalism is an "ism." As an "ism," Fleming writes, originalism did not exist before the 1970s: "Constitutional interpretation in light of original understanding did exist, but original understanding was seen as merely one source of constitutional decision-making among several-not as a general theory of constitutional interpretation, much less the exclusive legitimate theory."

This brief Comment on Fleming's book takes the practice Fleming identifies---"constitutional …

Innovation, The State And Private Enterprise: A Corporate Lawyer's Perspective, Charles M. Yablon

Articles

This is a review essay based on an important recent book, The Entrepreneurial State: Debunking Public vs. Private Sector Myths, by Mariana Mazzucato, a Professor of the Economics of Innovation. In that book, Professor Mazzucato explains how the U.S. Government, acting as an “entrepreneurial state” has made the critical investments in technologies that have given rise to multi-billion dollar new industries. Mazzucato argues that only the State currently has the funds and incentives necessary to finance the earliest and most important phases of the innovation process, investments the private sector cannot and will not make. Mazzucato’s defense of the centrality …

The Hopes And Fears Of All The Years: 30 Years Behind And The Road Ahead For The Widespread Use Of Mediation, Lela P. Love, Ellen A. Waldman

Articles

Looking through the windshield in 1985, the dispute resolution community was enthusiastic about mediation's promise: the promise of a radically different paradigm premised on party-driven resolution and collaborative decision-making. Peering ahead, mediation's pioneers anticipated a quiet revolution in conflict management toward more therapeutic and democratic processes. What do events in the last three decades tell us about the high and low points — the successes and failures — in the journey of that endeavor? Looking forward, how might we best align reality with our highest aspirations and avoid the disappointing troughs we encountered in those past decades? This article addresses …

The Entrepreneurial Commons: Reframing The Relationship Between Intellectual Property And Entrepreneurship, Michael J. Burstein

Articles

Reconceptualizing entrepreneurial activity as a knowledge commons leads us to ask a different set of questions than previous studies have, and to utilize a different set of methodological tools. As Part II described, existing approaches to understanding the relationship between IP and entrepreneurship focus on the firm and its reactions to various IP laws. By contrast, to the extent that the exemplar entrepreneurial activities described in Part III can be described as instances of commons governance, the analysis must necessarily be broader. The knowledge commons framework forces us to acknowledge that much of information production and dissemination depends on relationships …

The Moral Psychology Of Copyright Infringement, Christopher Buccafusco, Dave Fagundes

Articles

Numerous recent cases illustrate that copyright owners sue for infringement even when an unauthorized use of their work causes them no economic harm. This presents a puzzle from the perspective of copyright theory as well as a serious social problem, since infringement suits designed to remedy non-economic harms tend to stifle rather than encourage creative production. While much scholarship has critiqued copyright’s economic theory from the perspective of authors’ incentives to create, ours is the first to explore this issue from the perspective of owners’ motivations to sue for infringement. We turn to moral psychology, and in particular to moral …

A Theory Of Copyright Authorship, Christopher Buccafusco

Articles

The U.S. Constitution gives Congress the power to grant rights to “Authors” for their “Writings.” Despite the centrality of these terms to copyright jurisprudence, neither the courts nor scholars have provided coherent theories about what makes a person an author or what makes a thing a writing. This article articulates and defends a theory of copyrightable authorship. It argues that authorship involves the intentional creation of mental effects in an audience. A writing, then, is any fixed medium capable of producing mental effects. According to this theory, copyright may attach to the original, fixed, and minimally creative form or manner …

Six Degrees Of Graduation: Law And Economics Of Variable Sanctions, Alex Raskolnikov

Faculty Scholarship

From parking tickets to tax fines and punitive damages, legal sanctions matter in people's lives. Yet neither the legal nor the economics literature offers a comprehensive treatment of sanctions. Their practical complexity is not well understood, and their theoretical analysis is fragmented. This Essay addresses both limitations using tax law as a primary example. Sanctions are complex because they vary along at least six different dimensions: aggressiveness, magnitude, culpability, effort to comply, likelihood of detection, and offense history. These six degrees of sanction graduation are distinct, and potentially independent, but often intertwined in obscure and perplexing ways. After clarifying the …

Privacy-Privacy Tradeoffs, David E. Pozen

Faculty Scholarship

Legal and policy debates about privacy revolve around conflicts between privacy and other goods. But privacy also conflicts with itself. Whenever securing privacy on one margin compromises privacy on another margin, a privacy-privacy tradeoff arises.

This Essay introduces the phenomenon of privacy-privacy tradeoffs, with particular attention to their role in NSA surveillance. After explaining why these tradeoffs are pervasive in modern society and developing a typology, the Essay shows that many of the arguments made by the NSA's defenders appeal not only to a national-security need but also to a privacy-privacy tradeoff. An appreciation of these tradeoffs, the Essay contends, …

Constitutional Bad Faith, David E. Pozen

Faculty Scholarship

The concepts of good faith and bad faith play a central role in many areas of private law and international law. Typically associated with honesty, loyalty, and fair dealing, good faith is said to supply the fundamental principle of every legal system, if not the foundation of all law. With limited exceptions, however, good faith and bad faith go unmentioned in constitutional cases brought by or against government institutions. This doctrinal deficit is especially striking given that the U.S. Constitution twice refers to faithfulness and that insinuations of bad faith pervade constitutional discourse.

This Article investigates these points and their …

A Cause Of Action, Anyone?: Federal Equity And The Preemption Of State Law, Henry Paul Monaghan

Faculty Scholarship

I was not fortunate enough to have known Dan Meltzer well. I met Danny only a few times. We had only the thinnest of correspondence. Of his sterling reputation as a human being, I am of course fully aware. And I do know his work – all of it – thoroughly. On that point, a mountain of encomiums would iterate only a simple thought: Dan was the gold standard in federal courts scholarship. It is, therefore, a special honor to participate in a symposium to honor his memory.

In this very brief Essay, I focus on aspects of a topic …

"Death Tax" Politics, Michael J. Graetz

Faculty Scholarship

In his Keynote Address "Death Tax" Politics at the October 2, 2015 Boston College Law School and American College of Trust and Estate Counsel Symposium, The Centennial of the Estate and Gift Tax: Perspectives and Recommendations, Michael Graetz describes the fight over the repeal of the estate tax and its current diminished state. Graetz argues that the political battle over the repeal of the estate tax reflects a fundamental challenge to our nation's progressive tax system. This Address concludes that a revitalized estate tax is important for managing the national debt and reducing massive inequalities in wealth.

Duties To Organizational Clients, William H. Simon

Faculty Scholarship

Loyalty to an organizational client means fidelity to the substantive legal structure that constitutes it. Although this principle is not controversial in the abstract, it is commonly ignored in professional discourse and doctrine. This article explains the basic notion of organizational loyalty and identifies some mistaken tendencies in discourse and doctrine, especially the "Managerialist Fallacy" that leads lawyers to conflate the client organization with its senior managers. The article then applies the basic notion to some hard cases, concluding with a critical appraisal of the rationale for confidentiality with organizational clients.

First In A Series Display, Maggie Mason Smith

Presentations

A First in a Series display is currently located on the 4th floor of Cooper Library. On display are books such as The Bad Beginning and The Girl with the Dragon Tattoo; audiobooks like A is for Alibi and Outlander; and the first season of a variety of television shows, such as Dexter and Portlandia.

Overcoming The Great Forgetting: A Comment On Fishkin And Forbath, Jedediah S. Purdy

Faculty Scholarship

Fishkin and Forbath’s (F&F’s) manuscript is a project of recovery. It portrays the present as a time marked by a “Great Forgetting” of a tradition of constitutional political economy. F&F name what has been forgotten the “democracy of opportunity” tradition. Recovering it would mean again treating the following three principles as linked elements at the core of our Constitution: (1) an anti-oligarchy principle that works to prevent wealth from producing grossly unequal political power; (2) a commitment to a broad middle class with secure, respected work; and (3) a principle of inclusion that opens participation in both citizenship and the …

Innovation Heuristics: Experiments On Sequential Creativity In Intellectual Property, Stefan Bechtold, Christopher Buccafusco, Christopher Jon Sprigman

Articles

All creativity and innovation build on existing ideas. Authors and inventors copy, adapt, improve, interpret, and refine the ideas that have come before them. The central task of intellectual property (IP) law is regulating this sequential innovation to ensure that initial creators and subsequent creators receive the appropriate sets of incentives. Although many scholars have applied the tools of economic analysis to consider whether IP law is successful in encouraging cumulative innovation, that work has rested on a set of untested assumptions about creators’ behavior. This Article reports four novel creativity experiments that begin to test those assumptions. In particular, …

Stops And Stares: Street Stops, Surveillance, And Race In The New Policing, Jeffrey Fagan, Anthony A. Braga, Rod K. Brunson, April Pattavina

Faculty Scholarship

The use of proactive tactics to disrupt criminal activities, such as Terry street stops and concentrated misdemeanor arrests, are essential to the "new policing." This model applies complex metrics, strong management, and aggressive enforcement and surveillance to focus policing on high crime risk persons and places. The tactics endemic to the "newpolicing"gave rise in the 1990s to popular, legal, political, and social science concerns about disparate treatment of minority groups in their everyday encounters with law enforcement. Empirical evidence showed that minorities were indeed stopped and arrested more frequently than similarly situated Whites, even when controlling for local social and …

The Second Circuit And Social Justice, Matthew Diller, Alexander A. Reinert

Articles

The Second Circuit is renowned for its landmark rulings in fields such as white collar crime and securities law — bread and butter issues growing out of Wall Street’s preeminence in the financial landscape of the nation. At the same time, the Second Circuit has a long tradition of breaking new ground on issues of social justice. Unlike some circuit courts which have reputations in the area of social justice built around one or two fields, such as the Fifth Circuit’s pioneering role in civil rights litigation or the Ninth Circuit’s focus on immigration, there is no one area of …

Working Themselves Impure: A Life Cycle Theory Of Legal Theories, Jeremy K. Kessler, David E. Pozen

Faculty Scholarship

Prescriptive legal theories have a tendency to cannibalize themselves. As they develop into schools of thought, they become not only increasingly complicated but also increasingly compromised, by their own normative lights. Maturation breeds adulteration. The theories work themselves impure.

This Article identifies and diagnoses this evolutionary phenomenon. We develop a stylized model to explain the life cycle of certain particularly influential legal theories. We illustrate this life cycle through case studies of originalism, textualism, popular constitutionalism, and cost-benefit analysis, as well as a comparison with leading accounts of organizational and theoretical change in politics and science. And we argue that …

Corporate Control And Idiosyncratic Vision, Zohar Goshen, Assaf Hamdani

Faculty Scholarship

This Article offers a novel theory of corporate control. It does so by shedding new light on corporate-ownership structures and challenging the prevailing model of controlling shareholders as essentially opportunistic actors who seek to reap private benefits at the expense of minority shareholders. Our core claim is that entrepreneurs value corporate control because it allows them to pursue their vision (i.e., any business strategy that the entrepreneur genuinely believes will produce an above-market rate of return) in the manner they see fit. We call the subjective value an entrepreneur attaches to her vision the entrepreneur’s idiosyncratic vision. Our framework identifies …

Regional Federal Administration, Dave Owen

Faculty Scholarship

No abstract provided.

Panel 3: Litigation Funding As A Tool For Collective Actions And Arbitrations, Anthony J. Sebok

Articles

The article explores innovative models of litigation funding, particularly third-party financing, and their implications for access to justice and legal efficiency. It examines how different jurisdictions, such as Quebec and Australia, have implemented funding mechanisms to address gaps in legal representation and the challenges of aggregating claims. The analysis highlights the potential benefits of these models, including increased access to justice and economic efficiency, while also addressing concerns about legitimacy, corruption, and systemic biases.

Private Dollars For Public Litigation: An Introduction, Anthony J. Sebok

Articles

The article argues that litigation investment—where third-party funders provide capital for lawsuits in exchange for a share of potential recoveries—should be extended to public litigation. It contends that the economic rationale for litigation investment applies equally to public entities, such as state Attorneys General, as it does to private litigants. The author highlights the funding gap in public litigation, particularly in large-scale cases against well-resourced defendants, and suggests that litigation investment could address this gap more effectively than contingent fee arrangements with private attorneys.