Law Commons^™

Law And Capitalism: What Corporate Crises Reveal About Legal Systems And Economic Development Around The World, Curtis J. Milhaupt, Katharina Pistor

Faculty Scholarship

This book explores the relationship between legal systems and economic development by examining, through a methodology we call the institutional autopsy, a series of high profile corporate governance crises around the world over the past six years. We begin by exposing hidden assumptions in the prevailing view on the relationship between law and markets, and provide a new analytical framework for understanding this question. Our framework moves away from the canonical distinction between common law and civil law regimes. It emphasizes the constant, iterative, rolling relationship between law and markets, and suggests that how a given country's legal system rolls …

New Frameworks For Racial Equality In The Criminal Law, Jeffery Fagan, Mukul Bakhshi

Faculty Scholarship

This Symposium, " Pursuing Racial Fairness in the Administration of Justice: Twenty Years After McClesky v. Kemp," was conceived and inspired by Theodore Shaw, Director-Counsel and President of the NAACP Legal Defense and Educational Fund, Inc. Ted Shaw and his staff worked with Columbia Law School Professor Jeffrey Fagan to recruit an outstanding group of scholars and activists who met on March 2-3, 2007 to hear and comment on the articles appearing in this Symposium. In addition to the authors whose work appears in this issue, many others made important contributions to the Symposium through their commentaries and presentations. These …

The Law Of War And Its Pathologies, George P. Fletcher

Faculty Scholarship

War is with us more than ever. This is true despite the efforts of the United Nations Charter to ban the concept of war from the vocabulary of its member states. The preferred term is armed conflict. True, the Charter does refer to the Second World War, but apart from this concession to historically entrenched labels, the W word appears only once-when the Charter refers to ridding the world of the scourge of war. The Geneva Conventions, adopted a few years later, follow the same pattern. George Orwell could not be more amused. We change the vocabulary and think we …

Software Patents, Incumbents, And Entry, John R. Allison, Abe Dunn, Ronald J. Mann

Faculty Scholarship

Software patents have been controversial since the days when "software" referred to the crude programs that came free with an IBM mainframe. Different perspectives have been presented in judicial, legislative, and administrative fora over the years, and the press has paid as much attention to this issue as it has to any other intellectual property topic during this time. Meanwhile, a software industry developed and has grown to a remarkable size, whether measured by revenues or profitability, number of firms or employees, or research expenditures. The scope of software innovation has become even broader, as an increasing number of devices …

The Disputed Quality Of Software Patents, John R. Allison, Ronald J. Mann

Faculty Scholarship

We analyze the characteristics of the patents held by firms in the software industry. Unlike prior researchers, we rely on the examination of individual patents to determine which patents involve software inventions. This method of identifying the relevant patents is more laborious than the methods that previous scholars have used, but it produces a data set from which we can learn more about the role of patents in the software industry. In general, we find that patents the computer technology firms obtain on software inventions have more prior art references, claims, and forward citations than the patents that the same …

Hoffman V. Red Owl Stores And The Myth Of Precontractual Reliance, Robert E. Scott

Faculty Scholarship

For decades there has been substantial uncertainty regarding when the law will impose precontractual liability. The confusion is partly attributable to the unfortunate case of Hoffman v. Red Owl Stores and to the unusual degree of scholarly attention that it has attracted. A careful examination of the record of the Hoffman case reveals facts that are much different from conventional understanding. The disagreement between Joseph Hoffman and Red Owl Stores resulted from a fundamental misunderstanding between the parties regarding the terms of Hoffnan's capital contribution to the franchise. The misunderstanding was largely a product of Hoffnan's penchant for moving assets …

Precontractual Liability And Preliminary Agreements, Alan Schwartz, Robert E. Scott

Faculty Scholarship

For decades, there has been substantial uncertainty regarding when the law will impose precontractual liability. The confusion is partly due to scholars' failure to recover the law in action governing precontractual liability issues. In this Article, Professors Schwartz and Scott show first that no liability attaches for representations made during preliminary negotiations. Courts have divided, however, over the question of liability when parties make reliance investments following a "preliminary agreement." A number of modern courts impose a duty to bargain in good faith on the party wishing to exit such an agreement. Substantial uncertainty remains, however, regarding when this duty …

China's Network Justice, Benjamin L. Liebman, Tim Wu

Faculty Scholarship

China's Internet revolution has set off a furious debate in the West. Optimists from Thomas Friedman to Bill Clinton have predicted the crumbling of the Chinese Party-state ("Party-state"), while pessimists suggest even greater state control. But a far less discussed and researched subject is the effect of China's Internet revolution on its domestic institutions. This Article, the product of extensive interviews across China, asks a new and different question. What has China's Internet revolution meant for its legal system? What does cheaper, if not free, speech mean for Chinese judges?

The broader goal of this Article is to better understand …

International Antitrust Negotiations And The False Hope Of The Wto, Anu Bradford

Faculty Scholarship

Multinational corporations ("MNCs") operate today in an increasingly open global trade environment. While tariff barriers have collapsed dramatically, several states and numerous scholars have raised concerns that the benefits of trade liberalization are undermined by various non-tariff barriers ("NTBs") to trade, including the anticompetitive business practices of private enterprise. As a result, demands to link trade and antitrust policies more closely by extending the coverage of the World Trade Organization ("WTO") to incorporate antitrust law have gathered momentum over the last decade.

Most advocates of a WTO antitrust agreement base their normative claims on largely intuitive assumptions about the necessity …

Just Until Payday, Ronald J. Mann, Jim Hawkins

Faculty Scholarship

The growth of payday lending markets during the last fifteen years has been the focus of substantial regulatory attention both in the United States and abroad, producing a dizzying array of initiatives by federal and state policymakers. Those initiatives have had conflicting purposes – some have sought to remove barriers to entry while others have sought to impose limits on the business. As is often the case in banking markets, the resulting patchwork of federal and state laws poses a problem when one state is able to dictate the practices of a national industry. For most of this industry's life, …

Legal Determinacy And Moral Justification, Jody S. Kraus

Faculty Scholarship

Since this is a conference on law and morality, and the topic of this panel is theories of contract law, I thought it particularly appropriate to ask how a theory of contract law can provide a moral justification for contract law. That question can be answered only by providing a more general account of how a legal theory can provide a moral justification for any area of the private law. In this preliminary Essay, I argue that in order morally to justify the private law, a theory of the private law must derive reasons from a normative political theory that …

Controlling Family Shareholders In Developing Countries: Anchoring Relational Exchange, Ronald J. Gilson

Faculty Scholarship

In recent years, corporate governance scholarship has begun to focus on the most common distribution of public corporation ownership: outside of the United States and the United Kingdom, publicly owned corporations often have a controlling shareholder. The presence of a controlling shareholder is especially prevalent in developing countries. In Asia, for example, some two-thirds of public corporations have one, most of whom represent family ownership. The law and finance literature, exemplified by a series of articles by Rafael La Porta, Florencio Lopez-de-Silanes, Andrei Shleifer, Robert Vishny and others, treats the prevalence of controlling shareholders as the result of bad law; …

The Law School Matrix: Reforming Legal Education In A Culture Of Competition And Conformity, Susan Sturm, Lani Guinier

Faculty Scholarship

Law school reform is in the air. Many reformers agree that the prevailing law school model developed in the nineteenth century does not adequately prepare students to become effective twenty-first century lawyers. Langdell's case method, designed around private domestic law, appellate cases, and the Socratic method, increasingly fails to teach students "how to think like a lawyer" in the world students will occupy. The curriculum over-emphasizes adjudication and discounts many of the important global, transactional, and facilitative dimensions of legal practice. Law school has too little to do with what lawyers actually do and develops too little of the institutional, …

When Did Lawyers For Children Stop Reading Goldstein, Freud And Solnit? Lessons From The Twentieth Century On Best Interests And The Role Of The Child Advocate, Jane M. Spinak

Faculty Scholarship

Between 1973 and 1986, Joseph Goldstein, Anna Freud, and Albert Solnit published three influential but controversial books on the best interests of the child that had an enormous impact on state decisions to intervene in family life and direct the placement of children. During the same period, children in child welfare proceedings were increasingly represented by lawyers or guardians ad litem whose advocacy included understanding and interpreting the meaning of best interests. This article begins by tracing a conversation of sorts that occurs between the authors and other scholars and practitioners as their ideas begin to influence decision-making in child …

Dividend Taxation In Europe: When The Ecj Makes Tax Policy, Alvin C. Warren, Michael J. Graetz

Faculty Scholarship

This article analyzes a complex line of recent decisions in which the European Court of Justice has set forth its vision of a nondiscriminatory system for taxing corporate income distributed as dividends within the European Union. We begin by identifying the principal tax policy issues that arise in constructing a system for taxing cross-border dividends and then review the standard solutions found in national legislation and international tax treaties. Against that background, we examine in detail a dozen of the Court's decisions, half of which have been handed down since 2006. Our conclusion is that the ECJ is applying a …

Institutional Competence And Organizational Prosecutions, Daniel C. Richman

Faculty Scholarship

The business pages regularly provide graphic stories about corporate deferred prosecution agreements (“DPAs”). And commentators regularly fulminate about this alleged abuse of government power, quite confident (or w illfully blind to the fact) that the removal of this non-nuclear option from the prosecutorial arsenal would substantially lessen the ability of prosecutors to obtain cooperation from firms and their employees. Yet this emerging practice has received all too little scholarly attention, and Professor Brandon Garrett has made an important contribution by carefully examining the available facts and creatively drawing on the structure reform literature to highlight questions it raises about legitimacy …

Economic Policy In The Public Interest, Jagdish N. Bhagwati

Faculty Scholarship

Economists, whose discipline has always had a strong relationship to moral philosophy (Adam Smith, the author of The Wealth of Nations, also wrote the celebrated Theory of Moral Sentiments), have always seen their role in society as that of pursuing the public good. They properly see themselves as guardians of the public interest, and to be engaged in public-policy debates against special interests who wish to ‘capture’ policy to advance their narrowly circumscribed, self-serving agendas.

Some Reflections About Three Decades Of Working With Incarcerated Mothers, Philip Genty

Faculty Scholarship

Almost thirty years ago I was a second-year student in a law school clinic. I was making my first legal visit to a prison. My client, whom I will call "Dina," was meeting me to talk about some visitation issues with her young son. When she came into the visiting room she was poised and professional in demeanor. She began to explain that her son was being cared for by his paternal grandmother. The grandmother was unwilling to bring him to the prison to see her. As a result Dina had not seen her son for several months. Suddenly, and …

Panel One: Lessons Learned: Gender Analyses Of Past Policies And Practices: Introduction, Suzanne B. Goldberg

Faculty Scholarship

Hello. I'm Suzanne Goldberg. I am pleased to welcome you to the first of two afternoon panels as part of the Women's Rights Law Reporter Symposium, "Lessons Learned: Gender Analyses of Past Policies and Practices." Thank you to Dr. Enarson for the wonderful opening to our conversation today. She has inspired us to think about broadening our analytic lens by foregrounding questions of gender in our consideration of disasters and disaster relief.

Judging Untried Cases, Daniel C. Richman

Faculty Scholarship

That federal criminal trials are an endangered species is clear. During fiscal year 2004, only 4% (3346) of the 83,391 federal defendants in terminated cases went to trial. And, trends that Professor Ronald Wright highlights in his insightful article have continued past the end point of his data. In 1994, 4639 defendants obtained verdicts from juries and 1050 from judges; in 2003, just 2909 and 615, respectively, did so. Every time one thinks that the system has hit an equilibrium at some “natural” distribution, the trial rate goes down a bit more.

End Natural Life Sentences For Juveniles, Jeffrey A. Fagan

Faculty Scholarship

In 2005, the U.S. Supreme Court in Roper v. Simmons (125 S. Ct. 1183) banned executions of persons who commit capital murder before they reach age 18. Roper overturned death sentences for 72 people in 18 states (Streib, 2005). Most (but not all) were resentenced to natural life or life in prison without the possibility of parole (or JLWOP). Juvenile justice advocates now want to extend Roper’s maturity heuristic, proportionality analysis, aversion to errors, and deference to international laws and norms to argue for a constitutional ban on natural life sentences for adolescent offenders. This move could have a far …

The "Prudent Retiree Rule": What To Do When Retirement Security Is Impossible, Jeffrey N. Gordon

Faculty Scholarship

The starting question for public policy analysis in the retirement security area ought to be this: “Is retirement security possible?” My text is drawn from the classic trust case Harvard College v. Amory, decided in 1830, in which the Massachusetts Supreme Judicial Court announced the prudent investor rule by stating, “Do what you will, the capital is at hazard.” The modern understanding of that text is not that there are no “risk free” assets. After all, the United States government assures the timely payment of principal and interest on Treasury securities backstopped in turn by Treasury’s unlimited call on …

Moral And Religious Convictions As Categories For Special Treatment: The Exemption Strategy, Kent Greenawalt

Faculty Scholarship

My topic differs from the usual inquiries about morality and law, such as how far law should embody morality, whether legal interpretation (always or sometimes) includes moral judgment, and whether an immoral law really counts as law. Concentrating on exemptions from ordinary legal requirements, I am interested in instances when the law might make especially relevant the moral judgments of individual actors. I am particularly interested in whether the law should ever treat moral judgments based on religious conviction differently from moral judgments that lack such a basis.

A striking example for both questions is conscientious objection to military service. …

The Effect Of Court-Ordered Hiring Quotas On The Composition And Quality Of Police, Justin Mccrary

Faculty Scholarship

Arguably the most aggressive affirmative action program ever implemented in the United States was a series of court-ordered racial hiring quotas imposed on municipal police departments. My best estimate of the effect of court-ordered affirmative action on work-force composition is a 14-percentage-point gain in the fraction African American among newly hired officers. Evidence on police performance is mixed. Despite substantial black-white test score differences on police department entrance examinations, city crime rates appear unaffected by litigation. However, litigation lowers slightly both arrests per crime and the fraction black among serious arrestees.

A Marriage Of Convenience? A Comment On The Protection Of Databases, Jane C. Ginsburg

Faculty Scholarship

Daniel Gervais concluded his analysis of the protection of databases with three options for the future. I would like to examine a fourth. Let us assume no future flurry of national or supranational legislative activity because the content of databases is in fact already being protected. Not through copyright or sui generis rights, but through other means. Databases are an object of economic value, and they will conveniently wed whatever legal theory or theories will achieve the practical objective of preventing unauthorized exploitation of the works' contents. To beat the marriage metaphor into the ground, I'd like to suggest that, …

Foreign Authority, American Exceptionalism, And The Dred Scott Case, Sarah H. Cleveland

Faculty Scholarship

At least since Alexis de Tocqueville wrote in 1831, the idea that America is distinctive from other nations has permeated much political and social commentary. The United States has been variously perceived as unique in its history, its culture, its national values, its social movements, and its social and political institutions. While the term technically refers only to distinctiveness or difference, "exceptionalism" may have positive or negative aspects – what Harold Koh has called "America's Jekyll-and-Hyde exceptionalism." In the legal realm, claims of exceptionalism have been offered to support what Michael Ingnatieff identifies as "legal isolationism" – or refusal by …

Stricter Rules On Storm Water Discharges Taking Effect, Michael B. Gerrard

Faculty Scholarship

On. 8, 2008, new requirements will take effect in New York requiring some previously unregulated entities to file for permits to discharge storm water, and imposing stricter or different requirements on those entities that are already regulated.

The state is requiring urbanized communities and publicly owned institutions, referred to as municipal separate storm sewer systems (MS4s), to establish fully functional stormwater management programs (SWMPs) by that date. The state has issued new draft permits for MS4s and also for operators of construction sites over one acre, which go into effect on Jan. 8.

Survey Of Climate Change Litigation, Michael B. Gerrard

Faculty Scholarship

Approximately 35 lawsuits have been filed in the United States concerning global climate change, together with several administrative proceedings and officially threatened actions. About half of them have led to judicial decisions, and several of those are under appeal; most of the rest are pending.

Much attention has deservedly gone to the U.S. Supreme Court’s decision in Massachusetts v. the EPA, but that is only the tip of the figurative iceberg; and unlike most of the real ones, it is growing rather than melting.

This article surveys U.S. climate change litigation. The lawsuits can be broadly divided between those …

Kyoto's Clean Development Mechanism In Action: India, China And Brazil, Michael B. Gerrard, Siddharth Sethy, Hui Xu, Bruno Gagliardi

Faculty Scholarship

The Kyoto Protocol is the principal international agreement to reduce global climate change. The Clean Development Mechanism (CDM) helps achieve the Protocol’s objectives by allowing developed countries to pay for reductions of greenhouse gases in developing countries.

The developing countries that are most actively involved in the CDM – and that have the greatest potential for future involvement – are India, China and Brazil. The purpose of this article is to describe the CDM, the activities in these three countries under the CDM, and the current and future role of the United States under the CDM.

To Condone Or Condemn? Regional Enforcement Actions In The Absence Of Security Council Authorization, Monica Hakimi

Faculty Scholarship

The U.N. Charter establishes that regional arrangements may not take enforcement actions without authorization from the Security Council. Yet the international community does not always enforce this Charter rule. Major international actors repeatedly tolerate deviations from it even as they assert that it allows no exceptions. This Article examines that practice, arguing that two different legal systems govern enforcement actions taken by regional arrangements. One system is reflected in the Charter text and publicly endorsed by major international actors. The second, more nebulous system is based on expectations and demands in the absence of Security Council authorization. Under this second …