Law Commons^™

Comments On Preliminary Draft 7 [Black Letter And Comments], Jane C. Ginsburg, June M. Besek

Faculty Scholarship

PD7 is often confusing, largely as a result of failure to provide important explanations or definitions, or to tell the reader where that information can be found. Key terms, such as “edicts of law” and “formalities” remain undefined. Formalities are a principal topic of PD7; they deserve a more thorough description than the draft contains, addressing what formalities are, whether every declaratory obligation (or option) is a “formality,” or only those that go to the existence or enforcement of copyright (this is the Berne Convention meaning of “formality”).

Professor Justice Ginsburg: Justice Ginsburg's Love Of Procedure And Jurisdiction, Zachary D. Tripp, Gillian E. Metzger

Faculty Scholarship

As two of Justice Ginsburg’s former clerks, we are keenly aware of the popular image of the Justice as the “Notorious RBG”: the champion of women’s rights and the forceful dissenter, strongly disputing the Roberts Court’s conservative turn and articulating the case for the liberal New Deal constitutional vision, with its commitment to protecting individual rights and broad view of national power.

This she did, powerfully and eloquently. But to understand Justice Ginsburg – the person, the Justice, and her jurisprudence – it is also critical to account for her role as the Supreme Court’s leading civil procedure and federal …

Legal Pathways To Biden's Climate Goals, Michael B. Gerrard

Faculty Scholarship

Achieving President Biden’s goal of net-zero green­house gas emissions by 2050, with interim targets of being halfway there by 2030 and having entirely clean electric­ity by 2035, is possible with law and technologies that already exist or can be readily imagined. In the process, many more jobs would be created than lost, and aspects of the environment beyond climate change would be greatly improved. But it is a massive undertaking.

Propertied Rites, Kellen R. Funk

Faculty Scholarship

This Essay reviews Jack Rakove’s Beyond Belief, Beyond Conscience and Winnifred Fallers Sullivan’s Church State Corporation with an eye towards the complex management of religious property in U.S. constitutional doctrine. Part I summarizes Rakove’s book and highlights its value in the context of recent scholarship on early American legislative theory. Part II critiques Rakove’s turn from description towards advocacy of James Madison’s liberal protestant political theology. Part III summarizes Sullivan’s book as a particularly potent rebuttal to Rakove’s. Part IV takes up Sullivan’s method to consider the most recent crisis of religious property before the Supreme Court, that of government …

Automating Fairness? Artificial Intelligence In The Chinese Court, Rachel E. Stern, Benjamin L. Liebman, Margaret Roberts, Alice Z. Wang

Faculty Scholarship

How will surging global interest in data analytics and artificial intelligence transform the day-to-day operations of courts, and what are the implications for judicial power? In the last five years, Chinese courts have come to lead the world in their efforts to deploy automated pattern analysis to monitor judges, standardize decision-making, and observe trends in society. This Article chronicles how and why Chinese courts came to embrace artificial intelligence, making public tens of millions of court judgments in the process. Although technology is certainly being used to strengthen social control and boost the legitimacy of the Chinese Communist Party, examining …

Disability Admin: The Invisible Costs Of Being Disabled, Elizabeth F. Emens

Faculty Scholarship

This Essay comes in five parts. After this Introduction, Part I begins by briefly sketching the concept of life admin and setting out the understanding of disability that informs the ADA. Part II demonstrates the special burdens that admin places on people with disabilities and uses this argument to refine the social model of disability and clarify its implications. This theoretical insight lays the groundwork for Part III to fill a gap in the analysis of “reasonable” accommodation under Title I. This Part shows that, although courts have set out a cost-benefit analysis as the framework for determining the “reasonableness” …

Next Mayor Will Inherit Job Of Implementing 2019 Law Setting Building Emissions Caps, Michael B. Gerrard, Edward Mctiernan

Faculty Scholarship

Whoever becomes New York City’s next Mayor will need to pivot quickly to implementing a collection of laws adopted in 2019 and bundled together as the Climate Mobilization Act. These laws are designed to help reduce greenhouse gas emissions in New York City by 40% below 2005 levels by 2030 and 80% by 2050. Because 70% of the greenhouse gases emitted in New York City are generated by how New Yorkers heat, light and power buildings, the Climate Mobilization Act includes Local Laws 92 and 94, which require that new buildings or buildings undergoing major roof renovations include solar panels …

Using New York Law To Advance Equity In The Transportation & Climate Initiative Program, Hillary Aidun, Ama Francis, Michael B. Gerrard

Faculty Scholarship

Reducing pollution from the transportation sector is one of the most important steps to sustaining a livable climate. The transportation sector is the leading source of greenhouse gas (GHG) emissions in both the United States and New York. Cars, trucks and buses also emit other harmful air pollutants that more immediately contribute to public health threats such as asthma, heart disease, and premature death.

Emerging State-Level Environmental Justice Laws, Michael B. Gerrard, Edward Mctiernan

Faculty Scholarship

Environmental justice (EJ) has grown in prominence in the political discourse in the last several years While most of the attention has gone to federal actions, several states have just adopted their own laws to advance EJ.

The basic idea behind EJ is that disadvantaged communities should not be disproportionately exposed to environmental hazards, that these communities should have a say in the actions that affect their environment, and that the environmental laws should be vigorously enforced there.

Removing Carbon Dioxide Through Seaweed Cultivation: Legal Challenges And Opportunities, Korey Silverman-Roati, Michael B. Gerrard, Romany M. Webb

Faculty Scholarship

Scientists increasingly agree that carbon dioxide removal will be needed, alongside deep emissions cuts, to stave off the worst impacts of climate change. A wide variety of technologies and strategies have been proposed to remove carbon dioxide from the atmosphere. To date, most research has focused on terrestrial-based approaches, but they often have large land requirements, and may present other risks and challenges. As such, there is growing interest in using the oceans, which have already absorbed more than a quarter of anthropogenic carbon dioxide emissions, and could become an even larger carbon sink in the future.

This paper explores …

Potential Tensions Between New York’S Climate Change Laws And Historic Preservation Laws, Michael B. Gerrard, Edward Mctiernan

Faculty Scholarship

For many years, designated historic buildings have been exempt from most energy conservation codes. However, with increased attention to the perils of climate change, some cities – including New York – are adopting strong laws on building energy use that do not have this exemption. Historic preservation laws that have not caught up, and some fire codes, may pose obstacles to the installation of rooftop solar and some other methods to reduce building energy consumption.

Removing Carbon Dioxide Through Ocean Alkalinity Enhancement: Legal Challenges And Opportunities, Romany M. Webb, Korey Silverman-Roati, Michael B. Gerrard

Faculty Scholarship

Many scientists now agree that achieving the 2015 Paris Agreement’s goal of limiting global warming to “well below” 2°C, and ideally to 1.5°C, above pre-industrial levels will require both major reductions in greenhouse gas emissions and the removal of massive amounts of carbon dioxide from the atmosphere. Various terrestrial and ocean-based carbon dioxide removal techniques have been proposed, but further research is needed to evaluate their relative benefits and drawbacks. Initial studies suggest that terrestrial carbon dioxide removal techniques, such as bioenergy with carbon capture and storage, may require large amounts of land, which could lead to conflicts with other …

Race And Equity In The Age Of Unicorns, Lynnise E. Pantin

Faculty Scholarship

This Article critically examines startup culture and its legal predicates. The Article analyzes innovation culture as a whole and uses the downfall of Theranos to illustrate the deficiencies in Silicon Valley culture, centering on race and class. The Article demonstrates that the rise and fall of the unicorn startup Theranos and its founder, Elizabeth Holmes, is emblematic of the problem with the glorification and pursuit of the unicorn designation for startup ventures. The examination of the downfall of Theranos exposes how investors, founders, and others in Silicon Valley engage with each other in the context of pursuing unicorn status. The …

How The Administrative State Got To This Challenging Place, Peter L. Strauss

Faculty Scholarship

Written for a dispersed agrarian population using hand tools in a local economy, our Constitution now controls an American government orders of magnitude larger that has had to respond to profound changes in transportation, communication, technology, economy, and scientific understanding. How did our government get to this place? The agencies Congress has created to meet these changes now face profound new challenges: transition from the paper to the digital age; the increasing centralization in an opaque, political presidency of decisions that Congress has assigned to diverse, relatively expert and transparent bodies; the thickening, as well, of the political layer within …

Law Enforcement Organization Relationships With Prosecutors, Daniel C. Richman

Faculty Scholarship

Although police departments and prosecutor’s o􀁽ces must closely collaborate, their organizational roles and networks, and the distinctive perspectives of their personnel, will inevitably and regularly lead to forceful dialogue and disruptive friction. Such friction can occasionally undermine thoughtful deliberation about public safety, the rule of law, and community values. Viewed more broadly, however, these interactions promote just such deliberation, which will become even healthier when the dialogue breaks out of the closed world of criminal justice bureaucracies and includes the public to which these bureaucracies are ultimately responsible. This chapter explores such organizational interactions and their value.

Foucault’S Keystone: Confessions Of The Flesh, Bernard E. Harcourt

Faculty Scholarship

The fourth and final volume of The History of Sexuality offers the keystone to Michel Foucault’s critique of Western neoliberal societies. Confessions of the Flesh provides the heretofore missing link that ties Foucault’s late writings on subjectivity to his earlier critique of power. Foucault identifies in Augustine’s treatment of marital sexual relations the moment of birth of the modern legal actor and of the legalization of social relations. With the appearance of the modern legal subject, Foucault’s critique of modern Western societies is complete: it is now possible to see how the later emergence of an all-knowing homo oeconomicus strips …

The Future Of Disclosure: Esg, Common Ownership, And Systematic Risk, John C. Coffee Jr.

Faculty Scholarship

The U.S. securities markets have recently undergone (or are undergoing) three fundamental transitions: (1) institutionalization (with the result that institutional investors now dominate both trading and stock ownership); (2) extraordinary ownership concentration (with the consequence that the three largest U.S. institutional investors now hold 20% and vote 25% of the shares in S&P 500 companies); and (3) the introduction of ESG disclosures (which process has been driven in the U.S. by pressure from large institutional investors). In light of these transitions, how should disclosure policy change? Do institutions and retail investors have the same or different disclosure needs? Why are …

Federal Corporate Law And The Business Of Banking, Lev Menand, Morgan Ricks

Faculty Scholarship

The only profit-seeking business enterprises chartered by a federal government agency are banks. Yet there is barely any scholarship justifying this exception to state primacy in U.S. corporate law.

This Article addresses that gap. It reinterprets the National Bank Act (NBA) – the organic statute governing national banks, the heavyweights of the financial sector – as a corporation law and recovers the reasons why Congress wrote this law: not to catalyze private wealth creation or to regulate an existing industry, but to solve an economic governance problem. National banks are federal instrumentalities charged with augmenting the money supply – a …

The Equity E.O.: Building A Regulatory Infrastructure Of Inclusion, Olatunde C.A. Johnson

Faculty Scholarship

Among his first acts, President Biden signed Executive Order 13,985 to advance “Racial Equity and Support for Underserved Communities Through the Federal Government.” Alongside an order directing regulatory review to include “social welfare, racial justice, environmental stewardship, human dignity, equity, and the interests of future generations” and an ambitious infrastructure plan, this Equity E.O. signals a new engagement of the administrative state in proactively promoting racial equity and other dimensions of inclusion. The outlines of the infrastructure initiative are still emerging, but what appears key is its conceptualization of infrastructure as extending beyond roads and buildings to the social and …

A New Labor For Deep Democracy: From Social Democracy To Democratic Socialism, Mark Barenberg

Faculty Scholarship

Conventional workplace law includes the law of collective bargaining and employment contracts. This chapter argues that, to fully understand how law constructs worker power, industrial democracy, and political democracy, workplace law should greatly broaden in scope. The “new labor law” should encompass components of many fields of law that influence worker power and democracy as much as many components of conventional labor law. These additional components are lodged in domestic and international finance law, social wage law, constitutional law, communication law, tax law, and many more fields. The chapter applies the new labor law to critique and offer proposals to …

Leading Through Learning: Using Evolutionary Learning To Develop, Implement, And Improve Strategic Initiatives, Kimberly Austin, Amanda Cahn, Elizabeth Chu, Andrea Clay, James S. Liebman

Faculty Scholarship

Equitably educating students requires effective differentiation of services based on students’ strengths and needs. Doing so reliably at scale is difficult given the diversity of students and contexts in our public school systems and the diversity of needs created by historical and institutionalized discrimination against people of color, immigrants, and other populations.

Still, a number of systems and organizations have succeeded in advancing equity at scale. They have done so by finding new ways to design, lead, and manage their operations and engage internal and external stakeholders – in our language, new ways to govern2 their work. Cutting across these …

Distributed Ledger Technology And The Securities Markets Of The Future: A Stakeholder Survey, Merritt B. Fox, Lawrence R. Glosten, Edward F. Greene, Sue Guan

Faculty Scholarship

This Article evaluates the implications of distributed ledger technology (DLT) for the securities markets of the future and their regulation. DLT is an integral part of the larger revolution in computing, communication and data storage capacity that has transformed securities markets over the last few decades and promises further radical change in the years to come. The potential of DLT, if it can be realized, could improve the functioning of our securities markets while at the same time sharply reducing costs. Based on an interview survey of about 100 persons who play prominent roles in actually making these markets work …

The Past, Present, And Future Of The Restatement Of Copyright, Shyamkrishna Balganesh, Jane C. Ginsburg

Faculty Scholarship

It is now six years since the American Law Institute (ALI) began work on its first ever Restatement of an area dominated by a federal statute: copyright law. To say that the Restatement of the Law, Copyright (hereinafter “Restatement”) has been controversial would be a gross understatement. Even in its inception, the ALI identified the project as an outlier, noting that it was likely to be seen as an “odd project” since copyright “is governed by a detailed federal statute.”1 Neither the oddity nor the novelty of the project, however, caused the ALI to slow its efforts to push the …

Review Of 2020 Cases Under Seqra, Michael B. Gerrard, Edward Mctiernan

Faculty Scholarship

The courts decided 47 cases under the New York State Environmental Quality Review Act (SEQRA) in 2020. Of these, in the great majority – 31 – the courts upheld, or at least left alone, agencies’ decisions that a particular action did not require the preparation of a full environmental impact statement (EIS); in seven the courts rejected such decisions; and in eight the courts upheld EISs that had been prepared. (One case was unclassifiable.) The Court of Appeals issued no SEQRA decisions in 2020.

Strengthened Bonds: Abolishing The Child Welfare System And Re-Envisioning Child Well-Being, Nancy D. Polikoff, Jane M. Spinak

Faculty Scholarship

The 2001 book, Shattered Bonds: The Color of Child Welfare, by Dorothy Roberts, called out the racism of the child welfare system and the harms that system perpetrates on families and communities. Twenty years later, despite numerous reform efforts, the racism and profound harms endure. It is time for transformative change. In this foreword to the symposium Strengthened Bonds: Abolishing the Child Welfare System and Re-Envisioning Child Well-Being, honoring the 20th anniversary of Shattered Bonds, we highlight Professor Roberts’ articulation of her development as a family policing abolitionist and summarize the articles and comments contributed from scholars …

Discharging The Discharge-For-Value Defense, Eric L. Talley

Faculty Scholarship

Despite its massive size, the corporate debt market is often considered a sleepy refuge for the risk-averse. Yet, corporate debt contracts are often mind-numbingly detailed. That complexity – when coupled with the financial stakes in play – can be a recipe for calamity. And in late 2020, calamity struck in the form of an accidental $1 billion payoff sent to Revlon Inc.’s distressed creditors – not by Revlon itself but rather by Citibank, the administrative agent for the loan. When several lenders refused to return the cash, Citibank commenced what many reckoned would be a successful (if embarrassing) lawsuit to …

International Law Association's Guidelines On Intellectual Property And Private International Law ("Kyoto Guidelines"): Applicable Law, Marie-Elodie Ancel, Nicolas Binctin, Josef Drexl, Mireille Van Eechoud, Jane C. Ginsburg, Toshiyuki Kono, Gyooho Lee, Rita Matulionyte, Edouard Treppoz, Dário Moura Vicente

Faculty Scholarship

The chapter “Applicable Law” of the International Law Association’s Guidelines on In­tellectual Property and Private International Law (“Kyoto Guidelines”) provides principles on the choice of law in international intellectual property matters. The Guidelines confirm the traditional principle of the lex loci protectionis for the existence, transferabil­ity, scope and infringement of intellectual property rights. The law applicable to the initial ownership of registered rights is governed by the lex loci protec­tionis whereas the law of the closest connection is applied to determine the ownership of copyright. For contracts, freedom of choice is acknowledged. With regard to ubiquitous or multi-state infringement and …

Design Justice In Municipal Criminal Regulation, Amber Baylor

Faculty Scholarship

This article explores design justice as a framework for deeper inclusion in municipal criminal court reform. Section I provides a brief summary of a typical litigant’s path through modern municipal courts. Then, section I explores the historic role of municipal courts, the insider/outsider dichotomy of municipal criminal regulation, and the limitations of past reform efforts. Section II shifts into an overview of participatory design and discusses the new emergence of design justice. Within the discussion of design justice, the article focuses on three precepts of design justice: excavating the history and impact of the courts, creating tools for participation, and …

Slavery's Constitution: Rethinking The Federal Consensus, Maeve Glass

Faculty Scholarship

For at least half a century, scholars of the early American Constitution have noted the archival prominence of a doctrine known as the “federal consensus.” This doctrine instructed that Congress had no power to interfere with the institution of slavery in the states where it existed. Despite its ubiquity in the records, our understanding of how and why this doctrine emerged is hazy at best. Working from a conceptual map of America’s founding that features thirteen local governments coalescing into two feuding sections of North and South, commentators have tended to explain the federal consensus either as a vestige of …

Populist Prosecutorial Nullification, Kerrel Murray

Faculty Scholarship

No one doubts that prosecutors may sometimes decline prosecution notwithstanding factual guilt. Everyone expects prosecutors to prioritize enforcement based on resource limitation and, occasionally, to decline prosecution on a case-by-case basis when they deem justice requires it. Recently, however, some state prosecutors have gone further, asserting the right to refuse categorically to enforce certain state laws. Examples include refusals to seek the death penalty and refusals to prosecute prostitution or recreational drug use. When may a single actor render inert her state’s democratically enacted law in this way? If the answer is anything other than “never,” the vast reach of …