Law Commons^™

United States Response To Questionnaire, June M. Besek, Jane C. Ginsburg, Caitlin Grusauskas

Faculty Scholarship

ALAI-USA is the U.S. branch of ALAI (Association Littèraire et Artistique Internationale). ALAI-USA was started in the 1980's by the late Professor Melville B. Nimmer, and was later expanded by Professor John M. Kernochan.

Tribute To John M. Kernochan – January 11, 2008, Jane C. Ginsburg

Faculty Scholarship

Were it not for Jack, I probably would not be teaching at Columbia Law School today. Way back in 1983, Jack, then several years from emeritus status, determined to identify and recruit a prospective intellectual property scholar who would join him in building an IP program for Columbia, and might in the long run succeed him. Jack had read all the articles about copyright published by young scholars and would-be scholars, and then proceeded to contact some of the authors for interviews. The interview led, at least in my case, to an invitation to teach a session of Jack's "Business …

Is The Bankruptcy Code An Adequate Mechanism For Resolving The Distress Of Systemically Important Institutions?, Edward R. Morrison

Faculty Scholarship

The President and members of Congress are considering proposals that would give the government broad authority to rescue financial institutions whose failure might threaten market stability. These systemically important institutions include bank and insurance holding companies, investment banks, and other "large, highly leveraged, and interconnected" entities that are not currently subject to federal resolution authority. Interest in these proposals stems from the credit crisis, particularly the bankruptcy of Lehman Brothers. That bankruptcy, according to some observers, caused massive destabilization in credit markets for two reasons. First, market participants were surprised that the government would permit a massive market player to …

Accession And Original Ownership, Thomas W. Merrill

Faculty Scholarship

Although first possession is generally assumed to be the dominant means of establishing original ownership of property, there is a second but less studied principle for initiating ownership, called accession, which awards new resources to the owner of existing property most prominently connected to the new resource. Accession applies across a wide variety of areas, from determining rights to baby animals and growing crops to determining ownership of derivative rights under intellectual property laws. Accession shares common features with first possession, in that both principles assign ownership uniquely in a way that imposes minimal information cost burdens on society. But …

Presidential Popular Constitutionalism, Jedediah S. Purdy

Faculty Scholarship

This Article adds a new dimension to the most important and influential strand of recent constitutional theory: popular or democratic constitutionalism, the investigation into how the U.S. Constitution is interpreted (1) as a set of defining national commitments and practices, not necessarily anchored in the text of the document, and (2) by citizens and elected politicians outside the judiciary. Wide-ranging and ground-breaking scholarship in this area has neglected the role of the President as a popular constitutional interpreter, articulating and revising normative accounts of the nation that interact dynamically with citizens' constitutional understandings. This Article sets out a "grammar" of …

A New Proposal For Loan Modifications, Christopher J. Mayer, Edward R. Morrison, Tomasz Piskorski

Faculty Scholarship

We propose a new three-pronged plan to address the recent harmful flood of foreclosures. Our plan would address the major barriers that inhibit the ability of third-party servicers to modify mortgages the way portfolio lenders are now doing with greater success. The plan provides greater compensation for servicers to perform their duties, removes legal constraints that inhibit modification, and addresses critical second liens that often get in the way of effective mortgage modifications. Our plan has more modest costs than competing plans and is likely to be the most effective while still protecting the rights of investors in mortgage-backed securities.

Bargaining Around Bankruptcy: Small Business Workouts And State Law, Edward R. Morrison

Faculty Scholarship

Federal bankruptcy law is rarely used by distressed small businesses. For every 100 that suspend operations, at most 20 file for bankruptcy. The rest use state law procedures to liquidate or reorganize. This paper documents the importance of these procedures and the conditions under which they are chosen using firm-level data on Chicago-area small businesses. I show that business owners bargain with senior lenders over the resolution of financial distress. Federal bankruptcy law is invoked only when bargaining fails. This tends to occur when there is more than one senior lender or when the debtor has defaulted on senior debt …

United States Detention Operations In Afghanistan And The Law Of Armed Conflict, Matthew C. Waxman

Faculty Scholarship

Looking back on US and coalition detention operations in Afghanistan to date, three key issues stand out: one substantive, one procedural and one policy. The substantive matter – what are the minimum baseline treatment standards required as a matter of international law? – has clarified significantly during the course of operations there, largely as a result of the US Supreme Court’s holding in Hamdan v. Rumsfeld. The procedural matter – what adjudicative processes does international law require for determining who may be detained? – eludes consensus and has become more controversial the longer the Afghan conflict continues. And the …

Tax Policy Challenges, Michael J. Graetz

Faculty Scholarship

In 1995, when the late, great Jack Nolan asked me to deliver the inaugural lecture in honor of Larry Woodworth, I was both honored and flattered. I had come to know Larry Woodworth beginning in 1969, when I was a rookie treasury tax policy staffer. At that time, he had already served the Joint Committee on Taxation for 25 years and had been the third Chief of Staff in its history beginning as chief of staff in 1964. Larry Woodworth was not only as knowledgeable about the tax law as anyone you would ever hope to meet, and as savvy …

There Is No Single Field Of Law And Development, Katharina Pistor

Faculty Scholarship

Let me begin – following Ohnesorge following Trubek and Santos – with the notion that the concepts of “law and development” and “rule of law” are closely intermingled with the process of legal reform in developing countries and the role foreign advisers and multilateral institutions play in that undertaking. Describing the “field” in this fashion reveals that the glue that holds together a set of disparate activities by disparate actors (for under what other circumstances do we assume common ground between family and securities lawyers, or professors and world bankers?) is a shared belief in the virtue of law.

Responsibility And The Negligence Standard, Joseph Raz

Faculty Scholarship

The paper has dual aim: to analyse the structure of negligence, and to use it to offer an explanation of responsibility (for actions, omissions, consequences) in terms of the relations which must exist between the action (omission, etc.) and the agents powers of rational agency if the agent is responsible for the action. The discussion involves reflections on the relations between the law and the morality of negligence, the difference between negligence and strict liability, the role of excuses and the grounds of duties to pay damages.

What Went Wrong? A Tragedy In Three Acts, John C. Coffee Jr.

Faculty Scholarship

I am going to tell today a simple story of greed, rationalization, and sloth; it is a tragedy in three acts. The first act involves the collapse of what I will call the Great American Housing Bubble. The second act involves the failure of the gatekeepers, in particular; what happened at those credit rating agencies that could lead them to rate everything investment-grade? In the final act, I will turn to the collapse of the investment banks, the failure of securities regulation, and where that leaves us.

Although this is a tragedy, it is not a Shakespearian tragedy because Shakespearian …

U.S. Class Actions And The "Global Class", George A. Bermann

Faculty Scholarship

Robert Casad's articles on comparative civil procedure were among the first comparative law pieces that caught my eye when, as a freshly-minted associate at a leading New York law firm, I found myself leafing through comparative law journals, rather than amassing billable hours. I had no idea then that comparative law could be as fascinating as I have come to find it, certainly not in a field like civil procedure where the dividends of comparative law work were by no means obvious to me. (Comparative law was not even taught in any guise at Yale Law School in the late …

Foreseeability And Copyright Incentives, Shyamkrishna Balganesh

Faculty Scholarship

Copyright law’s principal justification today is the economic theory of creator incentives. Central to this theory is the recognition that while copyright’s exclusive rights framework provides creators with an economic incentive to create, it also entails large social costs, and that creators therefore need to be given just enough incentive to create in order to balance the system’s benefits against its costs. Yet, none of copyright’s current doctrines enable courts to circumscribe a creator’s entitlement by reference to limitations inherent in the very idea of incentives. While the common law too relies on providing actors with incentives to behave in …

The Warren Court, Legalism And Democracy: Sketch For A Critique In A Style Learned From Morton Horwitz, William H. Simon

Faculty Scholarship

Morton Horwitz's Transformation books developed a critical approach that elaborates the underlying premises of legal doctrine and compares them to suppressed or ignored alternative perspectives. However, Horwitz's Warren Court book is largely an appreciation of the Court's doctrine that accepts at face value its underlying premises and the judges' claim to vindicate democratic values. In this essay, I speculate on what a Transformation-style critique of the Warren Court might look like and suggest that the Court is vulnerable to criticisms analogous to those the Transformation books make of earlier doctrine. I suggest that book ignores an alternative perspective on social …

Enhancing Investor Protection And The Regulation Of Securities Markets, John C. Coffee Jr.

Faculty Scholarship

This is the congressional testimony of Professor John C. Coffee, Jr., before the United States Senate Committee on Banking, Housing and Urban Affairs, March 10, 2009.

Our Twenty-First Century Constitution, Peter L. Strauss

Faculty Scholarship

Accommodating our Eighteenth Century Constitution to the government that Congress has shaped in the intervening two and a quarter centuries, Professor Strauss argues, requires accepting the difference between the President’s role as “Commander in Chief” of the Nation’s military, and his right to seek written opinions from those Congress has empowered to administer domestic laws under his oversight. Thus, the question for today is not whether the PCAOB offends Eighteenth Century ideas about government structure, but the question asked by Professors Bruff, Lawson, and Pildes – whether the relationships between PCAOB and SEC, SEC and President meet the constitutional necessity …

Neoliberal Penality: The Birth Of Natural Order, The Illusion Of Free Markets, Bernard E. Harcourt

Faculty Scholarship

What work do the categories “the free market” and “regulation” do for us? Why do we incarcerate one out of every one hundred adults? These seemingly unrelated questions, it turns out, are deeply interconnected. The categories of free and regulated markets emerged as an effort to make sense of irreducibly individual phenomena – unique forms of market organization. In the process, these categories helped shape our belief that the economic realm is characterized by natural order and equilibrium, and that the only legitimate sphere of government intervention is policing and punishment. The consequences have been devastating: first, in distorting and …

Henry Louis Gates And Racial Profiling: What's The Problem?, Bernard E. Harcourt

Faculty Scholarship

A string of recent studies has documented significant racial disparities in police stops, searches, and arrests across the country. The issue of racial profiling, however, did not receive national attention until the arrest of Professor Henry Louis Gates, Jr., at his home in Cambridge. This raises three questions: First, did Sergeant Crowley engage in racial profiling when he arrested Professor Gates? Second, why does it take the wrongful arrest of a respected member of an elite community to focus the attention of the country? Third, why is racial profiling so pervasive in American policing?

The answers to these questions are …

Geier V. American Honda Motor Co.: A Story Of Statutes, Regulation And The Common Law, Peter L. Strauss

Faculty Scholarship

This essay was written as a contribution to one of Foundation's "Story" series. In Geier, a lawsuit had been brought on behalf of a teenager whose injuries from an accident might have been lessened if her car had contained an airbag. Plaintiffs sued on the straightforward basis that the design choice to omit a safety device of proven merit made the car unreasonably hazardous. Federal safety regulations had required the maker of her car to install some such device as an airbag in at least 10% of the cars it made the year it made her car – but her …

Agency And Luck, Joseph Raz

Faculty Scholarship

Advancing an account of responsibility which is based on the functioning of our rational capacities, the paper revisits some central aspects of the moral luck puzzle. It proposes a new variant of Williams’ agent-regret, but concludes that its scope does not coincide with cases of moral luck. It then distinguishes different ways in which the factors beyond our control feature in our engagement with the world which show how the guidance principle (we are responsible for actions guided by our rational powers) recognises a narrower range of situations of moral luck than is often supposed, allowing to distinguish between responsibility …

Subsidizing Creativity Through Network Design: Zero Pricing And Net Neutrality, Robin S. Lee, Tim Wu

Faculty Scholarship

Today, through historical practice, there exists a de facto ban on termination fees – also referred to as a “zero-price” rule (Hemphill, 2008) – which forbids an Internet service provider from charging an additional fee to a content provider who wishes to reach that ISP’s customers. The question is whether this zero-pricing structure should be preserved, or whether carriers should be allowed to charge termination fees and engage in other practices that have the effect of requiring payment to reach users. This paper begins with a defense of the de facto zero-price rule currently in existence. We point out that …

On Uncertainty, Ambiguity, And Contractual Conditions, Eric L. Talley

Faculty Scholarship

This article uses the recent Delaware Chancery Court case of Hexion v. Huntsman as a template for motivating thoughts about how contract law should interpret contractual conditions in general – and "material adverse event" provisions in particular – within environments of extreme ambiguity (as opposed to risk). Although ambiguity and aversion there to bear some facial similarities to risk and risk aversion, an optimal contractual allocation of uncertainty does not always track the optimal allocation of risk. After establishing these intuitions as a conceptual proposition, I endeavor to test them empirically, using a unique data set of 528 actual material …

Street Stops And Broken Windows Revisited: The Demography And Logic Of Proactive Policing In A Safe And Changing City, Jeffrey Fagan, Amanda Geller, Garth Davies, Valerie West

Faculty Scholarship

The contributions of order-maintenance policing and broken windows theory to New York City’s remarkable crime decline have been the subject of contentious debate. The dominant policing tactic in New York since the 1990s has been aggressive interdiction of citizens through street encounters in the search for weapons or drugs. Research showed that minority citizens in the 1990s were disproportionately stopped, frisked and searched at rates significantly higher than would be predicted by their race-specific crime rates, and that this excess enforcement was explained by the social structure of predominantly minority neighborhoods than by either their disorder or their crime rates. …

Rethinking The "Law And Finance" Paradigm, Katharina Pistor

Faculty Scholarship

The label "Law and Finance" stands for a body of literature that has dominated policy-making and academic debates for the past decade. The literature has its origin in a series of papers co-authored by Andrei Shleifer, Rafael La Porta, Florencio Lopez-de-Silanes and a cohort of other researchers, including Robert Vishny, Simeon Djankov et al. (hereinafter referred to as LLS et al.). More than ten years after "Law and Finance" was first published, it seems appropriate to step back and consider the contribution this literature has made, but also to point out where it has gone astray and deviated attention from …

Winners And Losers In The Panel Stage Of The Wto Dispute Settlement System, Bernard Hoekman, Henrik Horn, Petros C. Mavroidis

Faculty Scholarship

Most research on the role of developing countries in the WTO Dispute Settlement (DS) system has focused on their propensity to participate as complainants, respondents, and third parties. Much of this line of research has sought to examine claims that developing countries are underrepresented as complainants and/or overrepresented as respondents in the DS system. This chapter examines whether the outcomes with regard to legal claims differ between developing and developed countries. It employs a dataset describing various aspects of the DS system that have been compiled under a World Bank project to take a first cut at exploring what the …

Integration, Reconstructed, Olatunde C.A. Johnson

Faculty Scholarship

This article examines Parents Involved for the light it sheds on integration's continuing relevance to educational and social equity. Part I examines the story of school integration in Jefferson County and shows how this largely successful metropolitan integration plan challenges claims of racial integration's futility. Part II puts forward the empirical evidence that plaintiffs in Parents Involved used in seeking to establish that school boards have a compelling interest in promoting racial integration and avoiding the harm of racially isolated schools. This part argues that the empirical case for racial integration, while not without limitations, moves beyond stigmatization, psychological harm, …

On Capturing The Possible Significance Of Institutional Design And Ethos, Peter L. Strauss

Faculty Scholarship

At a recent conference, a new judge from one of the federal courts of appeal – for the United States, the front line in judicial control of administrative action-made a plea to the lawyers in attendance. Please, he urged, in briefing and arguing cases reviewing agency actions, help us judges to understand their broader contexts. So often, he complained, the briefs and arguments are limited to the particular small issues of the case. We get little sense of the broad context in which it arises – the agency responsibilities in their largest sense, the institutional issues that may be at …

Rulemaking And The American Constitution, Peter L. Strauss

Faculty Scholarship

A Constitution that strongly separates legislative from executive activity makes it difficult to reconcile executive adoption of regulations (that is, departmentally adopted texts resembling statutes and having the force of law, if valid) with the proposition that the President is not ‘to be a lawmaker’. Such activity is, of course, an essential of government in the era of the regulatory state. United States courts readily accept the delegation to responsible agencies of authority to engage in it, what we call ‘rulemaking’, so long as it occurs in a framework that permits them to assess the legality of any particular exercise. …

Reasons: Practical And Adaptive, Joseph Raz

Faculty Scholarship

I will consider some of the differences between epistemic reasons and reasons for action, and use these differences to illuminate a major division between types of normative reasons, which I will call ‘adaptive’ and ‘practical’ reasons. A few clarifications of some aspects of the concept of epistemic reasons will lead to a distinction between standard and non-standard reasons (section 1). Some differences between epistemic and practical reasons will be described and explained in section 2, paving the way to generalising the contrast and explaining the difference between adaptive and practical reasons (section 3). sections 4 and 5 further explain and …