Digital Commons Network^™

Revising Boilerplate: A Comparison Of Private And Public Company Transactions, Stephen J. Choi, Robert E. Scott, G. Mitu Gulati

Faculty Scholarship

The textbook model of commercial contracts between sophisticated parties holds that terms are proposed, negotiated and ultimately priced by the parties. Parties reach agreement on contract provisions that best suit their transaction with the goal of maximizing the joint surplus from the contract. The reality, of course, is that the majority of the provisions in contemporary commercial contracts are boilerplate terms derived from prior transactions and even the most sophisticated contracting parties pay little attention to these standard terms, focusing instead on the price of the transaction. With standard-form or boilerplate contracts, this dynamic of replicating by rote the terms …

Seeing Transparency More Clearly, David E. Pozen

Faculty Scholarship

In recent years, transparency has been proposed as the solution to, and the cause of, a remarkable range of public problems. The proliferation of seemingly contradictory claims about transparency becomes less puzzling, this essay argues, when one appreciates that transparency is not, in itself, a coherent normative ideal. Nor does it have a straightforward instrumental relationship to any primary goals of governance. To gain greater purchase on how transparency policies operate, scholars must therefore move beyond abstract assumptions and drill down into the specific legal, institutional, historical, political, and cultural contexts in which these policies are crafted and implemented. The …

After Ice: A New Humane & Effective Immigration Enforcement Paradigm, Peter L. Markowitz

Articles

In recent years, as the U.S. Immigration and Customs Enforcement Agency's ("ICE') brutal tactics have devasted communities across the nation, a growing chorus of activists and policymakers have begun calling for the agency to be abolished. Abolish ICE advocates have made a compelling case for the irredeemable deficiencies of ICE; they have exposed the core injustices that lay at the heart of our current enforcement scheme, and they have proposed specific and thoughtful changes that are both defensible and achievable. However, these changes tend to focus on a negative vision of what we need to eliminate in our current enforcement …

Povos Indígenas, Genocídio E Pademia No Brasil, Fernanda Frizzo Bragato, Marco Antônio Delfino De Almeida, Jocelyn Getgen Kestenbaum

Articles

Indigenous Peoples, Genocide and Pandemics in Brazil

COVID-19 pandemics spreads among Brazilian indigenous communities while they endure the dismantling of protective policies, the current government's hostility, as well as the disproportionate effects in terms of contamination and mortality. This situation has been concerning indigenous organizations and public authorities in Brazil and worldwide. Indigenous peoples are potential victims of genocide, an act characterized both as a criminally punishable conduct and as a State policy capable to generate international State liability. This study intends to investigate whether and how the conditions of susceptibility to the physical destruction met by several Brazilian indigenous …

Race And Bankruptcy: Explaining Racial Disparities In Consumer Bankruptcy, Edward R. Morrison, Belisa Pang, Antoine Uettwiller

Faculty Scholarship

African American bankruptcy filers select Chapter 13 far more often than other debtors, who opt instead for Chapter 7, which has higher success rates and lower attorneys’ fees. Prior scholarship blames racial discrimination by attorneys. We propose an alternative explanation: Chapter 13 offers benefits, including retention of cars and driver’s licenses, that are more valuable to African American debtors because of relatively long commutes. We study a 2011 policy change in Chicago, which seized cars and suspended licenses of consumers with large traffic-related debts. The policy produced a large increase in Chapter 13 filings, especially by African Americans. Two mechanisms …

Minimum And Maximum Protection Under International Copyright Treaties, Jane C. Ginsburg

Faculty Scholarship

This Comment addresses minimum and maximum substantive international protections set out in the Berne Convention and subsequent multilateral copyright accords. While much scholarship has addressed Berne minima, the maxima have generally received less attention. It first discusses the general structure of the Berne Convention, TRIPS, and the WCT regarding these contours, and then analyzes their application to the recent “press publishers’ right” promulgated in the 2019 EU Digital Single Market Directive.

Furman'S Legacy: New Challenges To The Overbreadth Of Capital Punishment, Jeffrey A. Fagan

Faculty Scholarship

A 2018 decision in the Arizona Supreme Court raised new strong claims that the death penalty in the U.S. has become a "fatal lottery," with critical implications for its constitutionality and its future in American criminal law. In the case, Hidalgo v. Arizona, the defense provided preliminary evidence that over the past twenty years, nearly 98% of all first- and second-degree murder defendants in Maricopa County-the state's largest county and location of the nation's fifth largest city-were death-eligible. The Arizona Supreme Court conceded this point even as it rejected Mr. Hidalgo's appeal. What the Arizona Supreme Court conceded, and what …

Copyright Protection For Applied Art And Works Of Artistic Craftsmanship After Star Athletica, Jane C. Ginsburg

Faculty Scholarship

As the very first session proclaimed, the Star Athletica case has not been a model of total clarity on the Supreme Court’s part. I’m going to explore that proposition. I will go through some basic elements of the copyright statute, and will then apply those rules to several examples. The Copyright Act sets out the category of pictorial, graphic, and sculptural (“PGS”) works, whose statutory definition includes applied art. That was the subject matter at issue in Star Athletica. The statute also provides that PGS works “shall include works of artistic craftsmanship insofar as their form but not their mechanical …

Taking Compliance Seriously, John Armour, Jeffrey N. Gordon, Geeyoung Min

Faculty Scholarship

How can we ensure corporations play by the “rules of the game” – that is, laws encouraging firms to avoid socially harmful conduct? Corporate compliance programs play a central role in society’s current response. Prosecutors give firms incentives – through discounts to penalties – to implement compliance programs that guide and monitor employees’ behavior. However, focusing on the incentives of firms overlooks the perspective of managers, who decide how much firms invest in compliance.

We show that stock-based pay, ubiquitous for corporate executives, creates systematic incentives to short-change compliance. Compliance is a long-term investment for firms, whereas managers’ time horizon …

Rule By Data: The End Of Markets?, Katharina Pistor

Faculty Scholarship

This Article explores data as a source and, in their processed variant, as a means of governance that will likely replace both markets and the law. Discussing data not as an object of transactions or an object of governance, but as a tool for governing others on a scale that rivals that of nation states with their law, seems a fitting topic for a special issue that is devoted to the legal construction of markets. Here, I argue that while it may well be the case that law constitutes markets, markets are not the only way in which economic relations …

Power In Human Rights Advocate And Rightsholder Relationships: Critiques, Reforms, And Challenges, Sarah Knuckey, Benjamin Hoffman, Jeremy Perelman, Gulika Reddy, Alejandra Ancheita, Meetali Jain

Faculty Scholarship

Human rights advocacy can construct passive “victims,” objectify or displace rightsholders and affected communities, and contribute to their disempowerment. In response to critiques – made by rightsholders, activists, and scholars alike – about the values and effects of such disempowering advocacy models, many advocates are increasingly prioritizing an understanding of these dynamics and reforming practice to better center and support the agency of directly affected individuals and groups. However, the tactics and modalities of these efforts are under-examined in scholarly literature, and many human rights advocates lack access to adequate documentation of tactics and spaces for peer learning. In this …

In Defense Of Empiricism In Family Law, Elizabeth S. Scott

Faculty Scholarship

It is fitting to include an essay defending the application of empirical research to family law and policy in a symposium honoring the scholarly career of Peg Brinig, who is probably the leading empiricist working in family law. While such a defense might seem unnecessary, given the expanding role of behavioral, social, and biological research in shaping the regulation of children and families, prominent scholars recently have raised concerns about the trend toward reliance on empirical science in this field. A part of the criticism is directed at the quality of the science itself and at the lack of sophistication …

Anticipating Venezuela's Debt Crisis: Hidden Holdouts And The Problem Of Pricing Collective Action Clauses, Robert E. Scott, Stephen J. Choi, Mitu Gulati

Faculty Scholarship

A creditor who asks for stronger enforcement rights upon its debtor’s default will rationally accept a lower interest rate reflecting the greater expected recovery the exercise of those rights provides. Over a dozen studies, however, have failed to document this basic relationship in the context of the collective action clause, a key provision in sovereign bonds. We conjecture that this failure is because enforcing the rights in question requires collective decision-making among anonymous creditors with different interests, impeding market predictions regarding future price effects. The pricing of rights that require collective enforcement thus turns on whether the market observes an …

Building A Law-And-Political-Economy Framework: Beyond The Twentieth-Century Synthesis, Jedediah S. Purdy, David Singh Grewal, Amy Kapczynski, K. Sabeel Rahman

Faculty Scholarship

We live in a time of interrelated crises. Economic inequality and precarity, and crises of democracy, climate change, and more raise significant challenges for legal scholarship and thought. “Neoliberal” premises undergird many fields of law and have helped authorize policies and practices that reaffirm the inequities of the current era. In particular, market efficiency, neutrality, and formal equality have rendered key kinds of power invisible, and generated a skepticism of democratic politics. The result of these presumptions is what we call the “Twentieth-Century Synthesis”: a pervasive view of law that encases “the market” from claims of justice and conceals it …

Democracy & Religion: Some Variations & Hard Questions, Kent Greenawalt

Faculty Scholarship

The ideas sketched here concern the nonestablishment and free exercise norms expressed in the U.S. Constitution, their application to governmental institutions from legislatures to prisons and the military, the place of religion in the curricula of public schools, and the proper role of religious convictions in lawmaking. A major concern of the essay is the problem of achieving an appropriate balance between governmental neutrality toward religion, as required by the nonestablishment norm, and governmental accommodation of religious practices that would otherwise violate ordinary laws, as required by the free exercise norm. A recurring theme is the complexity of the issues …

An Environmental Lawyer's Fraught Quest For Legal Tools To Hold Back The Seas, Michael B. Gerrard

Faculty Scholarship

The law is the principal mechanism by which society resolves disputes and implements policies. For more than forty years, I have worked to use the law to address environmental problems, initially by trying to stop projects that would increase pollution and harm communities. But there are limits to what the courts can do without explicit direction from legislatures. Climate change is a prime example. Some have seen litigation as a silver bullet, but at least so far that has not been the case. Elections matter more than lawsuits. Until and unless elections bring to power a president, a Congress, and …

Picking The Low-Hanging Fruit: A Short Essay For Michael Klausner, Ronald J. Gilson

Faculty Scholarship

The articles that comprise this issue of the Journal of Corporation Law were first presented at a conference held at the Wharton School and co-sponsored by Wharton together with Columbia and Stanford Law Schools. The event was organized by my friend Peter Conti-Brown, to whom I am grateful for both the thought and the effort. Standing alone, the thought that the conference was warranted would have been extremely generous. However, anyone who has organized a conference knows that the idea for such events can be exciting, but what follows is an amount of work that had it been anticipated would …

Do We Need A New Conception Of Authorship?, Shyamkrishna Balganesh

Faculty Scholarship

Thank you to the organizers for having me. I’m delighted to be here. I’m going to take a step away from conceptual art, and go a little bit into history and a little bit into doctrine – and do the usual law professor thing. We law professors like to say that one of the great things about the job is that we get to overrule the Supreme Court ten thousand times a day, but the bad thing about the job is no one cares. And so, I’m going to try and make this such that you care.

Here’s the core …

Corporate Control, Dual Class, And The Limits Of Judicial Review, Zohar Goshen, Assaf Hamdani

Faculty Scholarship

Companies with a dual-class structure have increasingly been involved in high-profile battles over the reallocation of control rights. Google, for instance, sought to entrench its founders’ control by recapital­izing from a dual-class into a triple-class structure. The CBS board, in contrast, attempted to dilute its controlling shareholder by distributing a voting stock dividend that would empower minority shareholders to block a merger it perceived to be harmful. These cases raise a fundamental question at the heart of corporate law: What is the proper judicial response to self-dealing claims regarding reallocations of corporate control rights?

This Article shows that the reallocation …

Fixing America's Founding, Maeve Glass

Faculty Scholarship

The forty-fifth presidency of the United States has sent lawyers reaching once more for the Founders’ dictionaries and legal treatises. In courtrooms, law schools, and media outlets across the country, the original meanings of the words etched into the U.S. Constitution in 1787 have become the staging ground for debates ranging from the power of a president to trademark his name in China to the rights of a legal permanent resident facing deportation. And yet, in this age when big data promises to solve potential challenges of interpretation and judges have for the most part agreed that original meaning should …

Conceptualizing Legal Childhood In The Twenty-First Century, Clare Huntington, Elizabeth S. Scott

Faculty Scholarship

The law governing children is complex, sometimes appearing almost incoherent. The relatively simple framework established in the Progressive Era, in which parents had primary authority over children, subject to limited state oversight, has broken down over the past few decades. Lawmakers started granting children some adult rights and privileges, raising questions about their traditional status as vulnerable, dependent, and legally incompetent beings. As children emerged as legal persons, children’s rights advocates challenged the rationale for parental authority, contending that robust parental rights often harm children. And a wave of punitive reforms in response to juvenile crime in the 1990s undermined …

Public Health Law Tools: A Brief Guide, Kristen Underhill

Faculty Scholarship

The COVID-19 pandemic offers a threat with few precedents in modern times and tests the tools of modern surveillance and public health law. The goal of this chapter is to provide a brief overview of the types of measures that state and federal governments can invoke to treat and prevent the spread of infectious disease. The following sections will provide an orientation to domestic public health law followed by the types of measures available to state and federal public health authorities.

Although this chapter does not consider international institutions, treaties, or norms that affect public health, these are also essential …

Boynton V. Virginia And The Anxieties Of The Modern African-American Customer, Amber Baylor

Faculty Scholarship

In 1958, Bruce Boynton was arrested for ordering food in a Whites-Only diner and charged with criminal trespass. Sixty years later, African Americans continue to face arrest and threat of arrest in commercial establishments based on discriminatory trespass claims. When store owners or employees decide to exclude would-be patrons from their establishment for discriminatory reasons, both overt and implicit, they rely on the police to enforce this form of discrimination. This article considers the legacy of Boynton v. Virginia, particularly the resonance of Boynton’s unaddressed claim, that the state enforcement of discriminatory trespass allegations is an Equal Protection …

Privative Copyright, Shyamkrishna Balganesh

Faculty Scholarship

“Privative” copyright claims are infringement actions brought by authors for the unauthorized public dissemination of works that are private, unpublished, and revelatory of the author’s personal identity. Driven by considerations of authorial autonomy, dignity, and personality rather than monetary value, these claims are almost as old as Anglo-American copyright law itself. Yet modern thinking has attempted to undermine their place within copyright law and sought to move them into the domain of privacy law. This Article challenges the dominant view and argues that privative copyright claims form a legitimate part of the copyright landscape. It shows how privative copyright claims …

Copyright As Legal Process: The Transformation Of American Copyright Law, Shyamkrishna Balganesh

Faculty Scholarship

American copyright law has undergone an unappreciated conceptual transformation over the course of the last century. Originally conceived of as a form of private law – focusing on horizontal rights, privileges and private liability – copyright law is today understood principally through its public-regarding goals and institutional apparatus, in effect as a form of public law. This transformation is the result of changes in the ideas of law and law-making that occurred in American legal thinking following World War II, manifested in the deeply influential philosophy of the Legal Process School of jurisprudence which shaped the modern American copyright landscape. …

Privacy And Pandemics, Clarisa Long

Faculty Scholarship

The beginning of 2020 marked an unexpected turn for the world, the global pandemic of COVID-19 has affected every aspect of life. It has also created an unprecedented opportunity for governments to justify the expansion of their surveillance and collection of data. The foregoing essay, which was first published in Faculty Publications at Scholarship Archive of the Columbia Law School focuses on two types of data collection – governmental mass collection of nonanonymized location data and state-collected nonanonymized data on people's health and immunity status. Several countries have applied one or both practices and it is relevant to look into …

Deals, Victor P. Goldberg

Faculty Scholarship

Over a quarter of a century ago, Ron Gilson, Dan Raff, and I developed a new course, The Economics of Complex Transactions, which came to be known as Deals. The motivation for the course was our perception of a great imbalance in the law school curriculum, which was weighted heavily toward litigation, particularly appellate litigation. While a substantial number of our graduates were becoming transactional lawyers, there was hardly anything available to prepare them for that practice. Our concept was that lawyers were transaction engineers and, when designing contracts, they faced a generic set of problems. Furthermore, there were techniques …

Exemplary Legal Writing 2019: Five Recommendations, G. Edward White, Sarah Seo

Faculty Scholarship

In the song “Natalie Cook” from the musical podcast “36 Questions,” a married couple deals with the fallout from the husband’s discovery that his wife is really an individual named Judith, who “built a past / Made up a history / Details that fit this person named / Natalie.” When the husband accuses the wife, “You’re the one who made her up,” Natalie/Judith responds, “It was a bit more collaborative than you’re remembering.”

Association Between State Policies Using Medicaid Exclusions To Sanction Noncompliance With Welfare Work Requirements And Medicaid Participation Among Low-Income Adults, Atheendar S. Venkataramani, Elizabeth F. Bair, Erica Dixon, Kristin A. Linn, William J. Ferrell, Kevin G. Volpp, Kristen Underhill

Faculty Scholarship

Twenty states have pursued community engagement requirements (ie, work requirements) as a condition for Medicaid eligibility among adults considered able-bodied. Work requirements seek to improve health by incentivizing work, but may result in coverage losses.

The impact of work requirements on Medicaid coverage may extend beyond qualifying beneficiaries, by increasing confusion around benefit rules or deterring individuals from applying for coverage. However, the spillover effects of work requirements on individuals not directly subject to them are difficult to study because these programs have only recently been implemented. To examine this possibility, we studied Temporary Assistance for Needy Families (TANF), the …

Adultery, Infidelity, And Consensual Non-Monogamy, Edward D. Stein

Articles

Thirty-eight states have laws in place that relate to adultery. Though criminal laws against adultery are not frequently enforced, the network of criminal laws, tort laws, and domestic relations laws related to adultery disincentivize extra-marital sex, an effect heightened by the stigma and other social attitudes associated with adultery. This Essay argues that the socio-legal state of affairs concerning adultery is bad for marriages (and similar relationships), bad for public health, and is simply bad public policy. This is in part because the law treats infidelity-having sex with someone other than your primary partner without his or her consent or …