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Articles 1 - 30 of 95
Full-Text Articles in Law
The Study Of Chinese Law In The United States: Reflections On The Past And Concerns About The Future, Stanley B. Lubman
The Study Of Chinese Law In The United States: Reflections On The Past And Concerns About The Future, Stanley B. Lubman
Hong Yen Chang Center for Chinese Legal Studies
I am pleased to write in honor of Bill Jones by reflecting here on the study of Chinese law, which has occupied us both since the early 1960s and has since grown far beyond its narrow scope at that time. In the pages that follow, I first survey the development and current state of the field by reviewing American scholarship on some major areas of Chinese law from those early days up to the present. I am also pleased to use this review as a vehicle for noting, in particular, some of Bill's contributions to our inquiries. Some related activities …
Privatization As Delegation, Gillian E. Metzger
Privatization As Delegation, Gillian E. Metzger
Faculty Scholarship
Recent expansions in privatization of government programs mean that the constitutional paradigm of a sharp separation between public and private is increasingly at odds with the blurred public-private character of modern governance. While substantial scholarship exists addressing the administrative and policy impact of expanded privatization, heretofore little effort has been made to address this disconnect between constitutional law and new administrative reality. This Article seeks to remedy that deficiency. It argues that current state action doctrine is fundamentally inadequate to address the constitutional challenge presented by privatization. Current doctrine is insufficiently keyed to the ways that privatization involves delegation of …
Private Information, Self-Serving Biases, And Optimal Settlement Mechanisms: Theory And Evidence, Seth A. Seabury, Eric L. Talley
Private Information, Self-Serving Biases, And Optimal Settlement Mechanisms: Theory And Evidence, Seth A. Seabury, Eric L. Talley
Faculty Scholarship
The law and economics literature on suit and settlement has tended to focus on two alternative conceptual models. On the one hand, the "optimism" model of pre-trial negotiation attempts to explain settlement failure as an artifact of unfounded optimism by one or both parties. The idea that bargaining agents can adopt such non-rational biases receives support from experimental evidence. On the other hand, the "private information" model of pre-trial bargaining portrays settlement failures as an artifact of strategic information rent extraction. It finds support in some experimental evidence as well. This paper presents (for the first time) a mechanism-design approach …
An Appreciation Of Jonathan I. Charney, Lori Fisler Damrosch
An Appreciation Of Jonathan I. Charney, Lori Fisler Damrosch
Faculty Scholarship
Jon Charney preceded me into the academic world by a dozen years and already had a well-established reputation in international law when I was a brand-new law teacher. At the time we met in 1984, Jon was tackling some of the most ambitious topics in the theory and practice of international law, and he reached out to others for collegial engagement on those subjects. From the mid-1980s, he and I worked together on three collaborative books and on many projects for the American Society of International Law and the American Journal of International Law.
Atkins, Adolescence, And The Maturity Heuristic: Rationales For A Categorical Exemption For Juveniles From Capital Punishment, Jeffrey A. Fagan
Atkins, Adolescence, And The Maturity Heuristic: Rationales For A Categorical Exemption For Juveniles From Capital Punishment, Jeffrey A. Fagan
Faculty Scholarship
In Atkins v. Virginia, the U.S. Supreme Court voted six to three to bar further use of the death penalty for mentally retarded offenders. The Court offered three reasons for banning the execution of the retarded. First, citing a shift in public opinion over the thirteen years since Penry v. Lynaugh, the Court in Atkins ruled that the execution of the mentally retarded is "cruel and unusual punishment" prohibited by the Eighth Amendment. Second, the Court concluded that retaining the death penalty for the mentally retarded would not serve the interest in retribution or deterrence that is essential to capital …
Women's Rights: Reframing The Issues For The Future, Ariana Dubler, Anika Rahman, Kathy Rodgers, Jane M. Spinak
Women's Rights: Reframing The Issues For The Future, Ariana Dubler, Anika Rahman, Kathy Rodgers, Jane M. Spinak
Faculty Scholarship
Good morning and welcome, everyone, to our panel on Women's Rights: Refraining the Issues for the Future. I am Kathy Rodgers. I'm from the class of 1973 of Columbia Law School, and I'm looking around this room – this is not what room A and B looked like back then! Everybody has a microphone, which is great, because we hope to have some good interactive discussion with all of you this morning.
I am also, in addition to being a Columbia Law alum, the president of NOW Legal Defense and Education Fund here in New York. For over thirty-two years, …
Policy Recommendations For Dispute Prevention And Dispute Settlement In Transatlantic Relations: Legal Perspectives, George A. Bermann
Policy Recommendations For Dispute Prevention And Dispute Settlement In Transatlantic Relations: Legal Perspectives, George A. Bermann
Faculty Scholarship
The concrete case studies and general policy analyses that were the subject of inquiry in the conferences culminating in the present volume have predictably generated a series of distinctly legal – as well as political – reflections on dispute prevention and dispute settlement in the transatlantic arena. One of the merits of the dual (concrete and abstract) approach that has been adopted for these conferences is its capacity to provide a check against the risks that would result either from divorcing this study from the realities of disputes or from relying exclusively on potentially idiosyncratic dispute scenarios. The recommendations to …
Agora (Continued): Future Implications Of The Iraq Conflict: Editors' Note, Lori Fisler Damrosch, Bernard H. Oxman
Agora (Continued): Future Implications Of The Iraq Conflict: Editors' Note, Lori Fisler Damrosch, Bernard H. Oxman
Faculty Scholarship
This Agora continues the discussion of future implications of the Iraq conflict begun in the previous issue of the Journal. While the contributions to the first installment of the Agora concentrated mainly on the decision to initiate combat against Iraq in spring 2003 and the implications thereof for the restraints on use of force in the UN Charter and customary international law, the present pieces shift the focus to the management of the transition within Iraq in the aftermath of the military intervention.
Bi-Polar And Polycentric Approaches To Human Rights And The Environment, Michael Burger
Bi-Polar And Polycentric Approaches To Human Rights And The Environment, Michael Burger
Sabin Center for Climate Change Law
Within the well-established human rights system, there exist at least three ways to promote environmental ends (each of which is discussed further in Section III below): (1) mobilizing existing rights to achieve environmental ends; (2) reinterpreting existing rights to include environmental concerns; and (3) creating new rights, such as the right to a clean environment. To justify engaging in any one of these processes, an advocate must recognize both their moral legitimacy and legal utility. As one author has argued, "the justification for rights is to be found in the way in which they enable us to address a key …
Equality And The Forms Of Justice, Susan Sturm
Equality And The Forms Of Justice, Susan Sturm
Faculty Scholarship
Justice and equality are simultaneously noble and messy aspirations for law. They inspire and demand collective striving toward principle, through the unflinching comparison of the "is" and the "ought." Yet, law operates in the world of the practical, tethered to the realities of dispute processing and implementation. The work of many great legal scholars and activists occupies this unstable space between principle and practice. Owen Fiss is one such scholar, attempting to straddle the world of the here-and-now and the imagined and then deliberately constructed future, the contours of which have been established during the founding moments of our constitutional …
Agora: Future Implications Of The Iraq Conflict: Editors' Introduction, Lori Fisler Damrosch, Bernard H. Oxman
Agora: Future Implications Of The Iraq Conflict: Editors' Introduction, Lori Fisler Damrosch, Bernard H. Oxman
Faculty Scholarship
The military action against Iraq in spring 2003 is one of the few events of the UN Charter period holding the potential for fundamental transformation, or possibly even destruction, of the system of law governing the use of force that had evolved during the twentieth century. As with the great debates surrounding U.S. involvement in the two world wars, the establishment of the United Nations, and the challenges to UN Charter norms during the Cold War, this Journal seeks to provide a forum for reasoned and respectful treatment of legal issues that have aroused fierce passions.
Federalism And The Future Of Health Care Reform, Richard Briffault, Sherry Glied
Federalism And The Future Of Health Care Reform, Richard Briffault, Sherry Glied
Faculty Scholarship
An important theme in the ongoing health care reform debate is federalism. During the battle over the Clinton Health Plan in 1993–94, the question of which level of government — federal or state — should take the leading role in health policy was almost as contentious as the particular proposals for extending access to quality health care and controlling health care costs. With the failure in 1994 to achieve comprehensive legislation at the national level, many policymakers and commentators gave fresh attention to the states as potential agents for health care reform.
Of Legal Transplants, Legal Irritants, And Economic Development, Katharina Pistor, Daniel Berkowitz
Of Legal Transplants, Legal Irritants, And Economic Development, Katharina Pistor, Daniel Berkowitz
Faculty Scholarship
The collapse of the socialist system has given way to unprecedented economic and legal reforms in the former socialist countries. Over the past decade they have enacted new legislation in all areas of the law, drawing heavily on legal models from developed market economies, including common law and civil law countries. While the transplanted laws now on the books is largely consistent with Western practice, the enforcement of these new laws is often ineffective (Berkowitz, Pistor, and Richard, 2003).
Consensual Sex And The Limits Of Harassment Law, Carol Sanger
Consensual Sex And The Limits Of Harassment Law, Carol Sanger
Faculty Scholarship
This chapter discusses an enormous achievement of the campaign against the harassment of working women, which is the establishment of a set of facts about sex at work that had previously been denied, mocked, and misunderstood. It is now understood that sex can be unwelcome, that unwelcome overtures are neither harmless nor fun, and that consent to sex demanded on the job does not shift the behavior from the category of unwanted sex to the category of the welcome. On the other hand, one of the most ferocious complaints against the establishment of sexual harassment as a legal wrong is …
The New Technology Transfer Block Exemption: Will The New Block Exemption Balance The Goals Of Innovation And Competition?, Maurits Dolmans, Anu Bradford
The New Technology Transfer Block Exemption: Will The New Block Exemption Balance The Goals Of Innovation And Competition?, Maurits Dolmans, Anu Bradford
Faculty Scholarship
Licensors and licensees have long enjoyed the benefit of block exemption regulations for technology licensing. Block exemption regulations were adopted in the mid-80s for patent licensing and know-how licenses. These were combined and replaced in 1996 by a unified Technology Transfer Block Exemption Regulation (TTBE). This block exemption is currently under review.
DG Competition is writing a draft for a new T'BE. It is expected to be ready for review by the member states in September, and to be published for comments in October. The Commission hopes to have the new block exemption adopted and published in the first quarter …
Private Lawyers And Environmental Justice, Michael B. Gerrard
Private Lawyers And Environmental Justice, Michael B. Gerrard
Faculty Scholarship
A private lawyer representing a private client is seldom a crusader. When environmental justice is relevant to a particular matter – the client proposes to build a facility and engages the lawyer to help secure necessary governmental approvals, for example-the lawyer's primary duty must be to the client.
The client in such a case faces two primary types of questions: substantive, such as where and how to build the facility; and procedural, deciding what processes to follow and how much to involve the community in the planning. Typically, by the time the lawyer is brought in, the client already has …
What Did They Do And What Does It Mean? The Three-Judge Court's Decision In Mcconnell V. Fec And The Implications For The Supreme Court, Richard Briffault
What Did They Do And What Does It Mean? The Three-Judge Court's Decision In Mcconnell V. Fec And The Implications For The Supreme Court, Richard Briffault
Faculty Scholarship
My role at this symposium is to provide a brief overview of the three-judge court's decision in McConnell v. FEC, review the opinions, piece together what the court actually decided, and see how the Bipartisan Campaign Reform Act of 2002 ("BCRA") now stands. I will try to do that briefly, while giving a few general comments about what the court's opinions tell us about the state of campaign finance law today. As a preliminary matter, the three-judge court's opinions provide us with two radically different world views – almost two different intellectual universes – for thinking about campaign finance …
Who Needs The Bar?: Professionalism Without Monopoly, William H. Simon
Who Needs The Bar?: Professionalism Without Monopoly, William H. Simon
Faculty Scholarship
Professionalism has an idealistic dimension and an institutional one. The idealistic dimension is the notion of voluntary commitment to both client interests and public values. The institutional dimension is the ideal of self-regulation by the bar.
The idealistic dimension remains powerful. However disappointed we are by the distance between the profession's ideals and its members' practices, these ideals continue to inspire valuable efforts. Various professional organizations are making admirable contributions through pro bono representation of disadvantaged people, public education, and disinterested law reform efforts in a range of areas, such as litigation procedure, prisons, and judicial selection. Moreover, the bar's …
Network Neutrality, Broadband Discrimination, Tim Wu
Network Neutrality, Broadband Discrimination, Tim Wu
Faculty Scholarship
Communications regulators over the next decade will spend increasing time on conflicts between the private interests of broadband providers and the public's interest in a competitive innovation environment centered on the Internet. As the policy questions this conflict raises are basic to communications policy, they are likely to reappear in many different forms. So far, the first major appearance has come in the "open access" (or "multiple access") debate, over the desirability of allowing vertical integration between Internet Service Providers and cable operators. Proponents of open access see it as a structural remedy to guard against an erosion of the …
Frictions And Tax-Motivated Hedging: An Empirical Exploration Of Publicly-Traded Exchangeable Securities, William M. Gentry, David M. Schizer
Frictions And Tax-Motivated Hedging: An Empirical Exploration Of Publicly-Traded Exchangeable Securities, William M. Gentry, David M. Schizer
Faculty Scholarship
As financial engineering becomes more sophisticated, taxing income from capital becomes increasingly difficult. We offer the first empirical study of a high profile strategy known as "taxfree hedging," which offers economic benefits of a sale without tnggering tax. We explore nontax costs that taxpayers face when hedging by issuing so-called "DECS," "PHONES," and other publicly-traded exchangeable securities. Focusing on 61 transactions between 1993 and 2001, we shed light on why taxpayers might prefer to hedge through private "over-the-counter" transactions: An offering of exchangeable securities is announced in advance and implemented all at once, triggering an almost 4 percent decline in …
The Attorney As Gatekeeper: An Agenda For The Sec, John C. Coffee Jr.
The Attorney As Gatekeeper: An Agenda For The Sec, John C. Coffee Jr.
Faculty Scholarship
Section 307 of the Sarbanes-Oxley Act authorizes the SEC to prescribe "minimum standards of professional conduct" for attorneys "appearing or practicing" before it. Although the initial debate has focused on issues of confidentiality, this terse statutory provision frames and seemingly federalizes a much larger question: What is the role of the corporate attorney in public securities transactions? Is the attorney's role that of (a) an advocate, (b) a transaction cost engineer, or, more broadly, (c) a gatekeeper – that is, a reputational intermediary with some responsibility to monitor the accuracy of corporate disclosures? Skeptics of any gatekeeper role for attorneys …
When Code Isn't Law, Tim Wu
When Code Isn't Law, Tim Wu
Faculty Scholarship
When the Supreme Court upheld extended copyright terms in Eldred v. Ascroft, many Internet activists called for renewed political action in the form of appeals to Congress or even a campaign to amend the Constitution. But others suggested a very different course: They argued that it would be wiser to forgo institutions controlled by the powers of the past, and to return instead to the keyboard to write the next generation of "lawbusting" code. In the words of one observer, "tech people are probably better off spending their energy writing code than being part of the political process" because …
Whom (Or What) Does The Organization's Lawyer Represent?: An Anatomy Of Intraclient Conflict, William H. Simon
Whom (Or What) Does The Organization's Lawyer Represent?: An Anatomy Of Intraclient Conflict, William H. Simon
Faculty Scholarship
Professional responsibility issues involving organizational clients are distinctively difficult because organizations consist of constituents with conflicting interests. Legal doctrine has only recently begun to address the effect of internal conflict on a lawyer's responsibilities to an organizational client. Under current doctrine, the lawyer's responsibilities differ strongly depending on whether the representation is characterized as 'joint" representation of the organization 's constituents or "entity" representation. This Article argues that the choice between the two characterizations often has been arbitrary and that the underlying differences between them have been misunderstood. With respect to entity representation, it criticizes a prominent tendency in the …
Criminal Defenders And Community Justice: The Drug Court Example, William H. Simon
Criminal Defenders And Community Justice: The Drug Court Example, William H. Simon
Faculty Scholarship
The Community Justice idea and its core institution – the Community Court – is an ambitious innovation intended to generate new solutions and practices. It thus inevitably calls for adaptation of the established roles associated with the court system, and especially the criminal justice system. It asks practitioners to learn new skills, to accept new conventions, and to participate in the elaboration of a rapidly evolving experiment.
It is thus not surprising that many lawyers are anxious about the system. It remains an interesting question, however, whether their anxiety represents something more than the discomfort that change and challenge typically …
Understanding Venture Capital Structure: A Tax Explanation For Convertible Preferred Stock, Ronald J. Gilson, David M. Schizer
Understanding Venture Capital Structure: A Tax Explanation For Convertible Preferred Stock, Ronald J. Gilson, David M. Schizer
Faculty Scholarship
The capital structures of venture capital-backed U.S. companies share a remarkable commonality: overwhelmingly, venture capitalists make their investments through convertible preferred stock. Not surprisingly, much of the academic literature on venture capital has sought to explain this peculiar pattern. Financial economists have developed models showing, for example, that convertible securities efficiently allocate control between the investor and entrepreneur,signal the entrepreneur's talent and motivation, and align the incentives of entrepreneurs and venture capitalists.
In this Article, we examine the influence of a more mundane factor on venture capital structure: tax law. Portfolio companies issue convertible preferred stock to achieve more favorable …
Beyond Congress: The Study Of State And Local Legislatures, Richard Briffault
Beyond Congress: The Study Of State And Local Legislatures, Richard Briffault
Faculty Scholarship
I'd like to thank the Journal of Legislation and Public Policy for inviting me back to N.Y.U. I am particularly grateful to have the opportunity to sit between and learn from Bill Eskridge and Beth Garrett, who have once again demonstrated in their comments today why they are leaders in this field. I understand now what it must have been like to be a student in a class with Eskridge as the professor and Garrett as a fellow student – can you imagine what an experience that must have been?
I am going to focus my remarks on state and …
The Fragile Promise Of Provisionality, James S. Liebman, Charles F. Sabel
The Fragile Promise Of Provisionality, James S. Liebman, Charles F. Sabel
Faculty Scholarship
It is a pleasure to address such well-informed, insightful and well-intentioned responses to our Article. Intellectual predispositions and differing assessments of the prospects of reform aside, it is striking that so many participants have firsthand experience of the new model school, the new politics in all their mystery, and even non-court-centric judicial review. It is clear that something is afoot, and not just in academic circles, when observers as different as Diane Ravitch, the critic of Deweyan latitudinarianism, and Gordon Whitman, the community organizer, are both surprised to discover that standardized testing can go hand in hand with individualized education …
A Public Laboratory Dewey Barely Imagined: The Emerging Model Of School Governance And Legal Reform, James S. Liebman, Charles F. Sabel
A Public Laboratory Dewey Barely Imagined: The Emerging Model Of School Governance And Legal Reform, James S. Liebman, Charles F. Sabel
Faculty Scholarship
The American public school system is in the midst of a vast and promising reform. The core architectural principle of the emergent system is the grant by higher-level authorities – federal government, states, and school districts – to lower level ones of autonomy to pursue the broad goal of improving education. In return, the local entities – schools, districts, and states – provide the higher ones with detailed information about their goals, how they intend to pursue them, and how their performance measures against their expectations. The core substantive commitment of the emergent system is the provision to all students, …
Taxing International Portfolio Income, Michael J. Graetz, Itai Grinberg
Taxing International Portfolio Income, Michael J. Graetz, Itai Grinberg
Faculty Scholarship
Most analyses of the taxation of international income earned by U.S. corporations or individuals have addressed income from direct investments abroad. With the exception of routine bows to the "international tax compromise" and sporadic discussions of the practical difficulties residence countries face in collecting taxes on international portfolio income, the taxation of international portfolio income generally has been ignored in the tax literature.
Analysis and reassessment of U.S. tax policy regarding international portfolio income is long overdue. The amount of international portfolio investment and its role in the world economy has grown exponentially in recent years. In most years since …
Harnessing Information Technology To Improve The Environmental Impact Review Process, Michael B. Gerrard, Michael Herz
Harnessing Information Technology To Improve The Environmental Impact Review Process, Michael B. Gerrard, Michael Herz
Faculty Scholarship
In 1970, when the National Environmental Policy Act (NEPA) was enacted, the new and exciting information management technologies were the handheld four-function calculator and the eight-track tape cassette. Three decades later, after the personal computer, the digital revolution, and the World Wide Web, the implementation of NEPA is still stuck in the world of 1970. Other aspects of the bureaucracy have seen reform-the E-Government Strategy, an E-Government Act, the creation of a new Office of Electronic Government within the Office of Management and Budget (OMB), and, to focus on the environmental arena, the breathtaking success of the web-based Toxic Release …