Law Commons^™

Introduction, George A. Bermann

Faculty Scholarship

It is an honor to introduce this special issue of the Columbia Journal of European Law devoted to the legal method of the European Court of Justice (ECJ). That the issue consists of a single article should come as no surprise to anyone acquainted with Judge Koen Lenaerts, whose keen appreciation of the workings of the Court is quite simply unrivaled.

Risky Arguments In Social-Justice Litigation: The Case Of Sex Discrimination And Marriage Equality, Suzanne B. Goldberg

Faculty Scholarship

This Essay takes up the puzzle of the risky argument or, more precisely, the puzzle of why certain arguments do not get much traction in advocacy and adjudication even when some judges find them to be utterly convincing. Through a close examination of the sex discrimination argument's evanescence in contemporary marriage litigation, this Essay draws lessons about how and why arguments become risky in social-justice cases and whether they should be made nonetheless. The marriage context is particularly fruitful because some judges, advocates, and scholars find it "obviously correct" that laws excluding same-sex couples from marriage discriminate facially based on …

The Administrative Origins Of Modern Civil Liberties Law, Jeremy K. Kessler

Faculty Scholarship

This Article offers a new explanation for the puzzling origin of modern civil liberties law. Legal scholars have long sought to explain how Progressive lawyers and intellectuals skeptical of individual rights and committed to a strong, activist state came to advocate for robust First Amendment protections after World War I. Most attempts to solve this puzzle focus on the executive branch's suppression of dissent during World War I and the Red Scare. Once Progressives realized that a powerful administrative state risked stifling debate and deliberation within civil society, the story goes, they turned to civil liberties law in order to …

Health Rights In The Balance: The Case Against Perinatal Shackling Of Women Behind Bars, Brett Dignam, Eli Y. Adashi

Faculty Scholarship

Rationalized for decades on security grounds, perinatal shackling entails the application of handcuffs, leg irons, and/or waist shackles to the incarcerated woman prior to, during, and after labor and delivery. During labor and delivery proper, perinatal shackling may entail chaining women to the hospital bed by the ankle, wrist, or both. Medically untenable, legally challenged, and ever controversial, perinatal shackling remains the standard of practice in most US states despite sustained two-decades-long efforts by health rights legal advocates, human rights organizations, and medical professionals. Herein we review the current statutory, regulatory, legal, and medical framework undergirding the use of restraints …

Toward A Legal Theory On The Responsibility To Protect, Monica Hakimi

Faculty Scholarship

The idea of the "responsibility to protect" has received enormous attention in recent years-so much attention that it now goes simply by R2P. R2P posits that, when a state fails to protect its population from mass atrocities, the broader international community should step in to help. The vision here is of outside states banding together and doing everything possible to protect the at-risk population. But for all the attention this vision receives, its effect on international law or on the ultimate goal of protecting people from atrocities is unclear. This Article critiques that vision and offers an alternative. The Article …

The Future Of Many Contracts, Victor P. Goldberg

Faculty Scholarship

Forty years ago, my former colleague, the late Ian Macneil, published an article entitled The Many Futures of Contracts. When I was asked to contribute to this symposium on what contract law might look like in 2025, the play on words was too good to resist. Professor Macneil developed the notion of "relational contracts," emphasizing the limits of classical contract law in dealing with long-term contractual relations. His work had a strong influence on scholarship, including my work. The notion that many contractual relationships are long-lived and require some form of adaptation as circumstances change and new information becomes available …

Our Fair City: A Comprehensive Blueprint For Gender And Sexual Justice In New York City, Cindy Gao, Katherine M. Franke

Faculty Scholarship

Columbia Law School’s Center for Gender & Sexuality Law offers this report to aid the de Blasio administration in evaluating the steps it can and should take to eliminate all forms of gender and sexual discrimination, and to assure gender and sexual justice in City policy and programs. After consultation with numerous groups advocating for gender and sexual justice across New York City, the Center for Gender & Sexuality Law at Columbia Law School has synthesized in this report a set of key recommendations to the de Blasio administration, all designed to eliminate a wide range of disadvantages, invisibility, violence, …

The Child-Welfare System And The Limits Of Determinacy, Clare Huntington

Faculty Scholarship

To read Robert Mnookin’s seminal 1975 article, Child-Custody Adjudication: Judicial Functions in the Face of Indeterminacy, is to see a blueprint for legislative action. To a remarkable degree, the reforms Mnookin proposed to the child-welfare system are what Congress and the states adopted in the following two decades. And yet reading Mnookin’s article is also a Groundhog Day experience. The problems he described with the child-welfare system nearly forty years ago sound all too familiar today.

Mnookin famously argued that the best-interests standard was indeterminate in the context of the child-welfare system. According to Mnookin, this open-ended standard created …

Framing The Prosecution, Daniel C. Richman

Faculty Scholarship

The enormous value of Dan Simon’s In Doubt lies not just in its nuanced exploration of the challenges to accurate criminal factfinding, but also in its challenge to us to rethink trials themselves. Even as we endeavor to give criminal defendants the means and license to raise reasonable doubts, we need to think more about when and how those doubts can be allayed. Just because most jurisdictions have not come out of the first round of play – the one in which defendants get the tools to poke holes in the cases against them – does not mean it is …

The Salience Of Social Contextual Factors In Appraisals Of Police Interactions With Citizens: A Randomized Factorial Experiment, Anthony A. Braga, Christopher Winship, Tom Tyler, Jeffrey Fagan, Tracey L. Meares

Faculty Scholarship

Objectives: Prior research indicates that public assessments of the manner in which the police exercise their authority are a key antecedent of judgments about the legitimacy of the police. In this study, the importance of context in influencing people’s assessment of police wrongdoing is examined.

Methods: A randomized factorial experiment was used to test how respondents perceive and evaluate police–citizens interactions along a range of types of situations and encounters. 1,361 subjects were surveyed on factors hypothesized to be salient influences on how citizens perceive and evaluate citizen interactions with police. Subjects viewed videos of actual police – citizen encounters …

Digital Security In The Expository Society: Spectacle, Surveillance, And Exhibition In The Neoliberal Age Of Big Data, Bernard E. Harcourt

Faculty Scholarship

In 1827, Nicolaus Heinrich Julius, a professor at the University of Berlin, identified an important architectural mutation in nineteenth-century society that reflected a deep disruption in our technologies of knowledge and a profound transformation in relations of power across society: Antiquity, Julius observed, had discovered the architectural form of the spectacle; but modern times had operated a fundamental shift from spectacle to surveillance. Michel Foucault would elaborate this insight in his 1973 Collège de France lectures on The Punitive Society, where he would declare: “[T]his is precisely what happens in the modern era: the reversal of the spectacle into surveillance…. …

"Keep Government Out Of My Medicare": The Search For Popular Support Of Taxes And Social Spending, Gillian Lester

Faculty Scholarship

Despite the broad reach of the American welfare state, Americans continue to have conflicted and contradictory attitudes about the role of the state in mediating economic equality through both taxation and social spending. This chapter identifies several key themes that help explain these contradictions. Specifically, information about taxes and spending is complex and hard to understand, cognitive biases and limitations hamper people’s ability to process information in a way that is always consistent, and affective and symbolic factors influence social attitudes about taxes and government benefits. This chapter explores the implications of these insights for public policy, including the possibility …

Corporate Governance And Executive Compensation: Evidence From Japan, Robert J. Jackson Jr., Curtis J. Milhaupt

Faculty Scholarship

Lawmakers around the world are now urging corporations to adopt governance and executive pay standards drawn largely from the American corporate law context. Yet little is known about how corporate governance actually influences executive compensation decisions outside of the United States-and whether adoption of these standards is likely to be desirable for investors abroad.

In this Article, we take advantage of a recent change in Japanese law to provide the first direct empirical evidence on executive pay in Japan. The evidence provides striking detail on the amount and structure of Japanese executive compensation. The data point to a previously unappreciated …

Exceptional Authorship: The Role Of Copyright Exceptions In Promoting Creativity, Jane C. Ginsburg

Faculty Scholarship

A lawyer for an immense copyright-exploiting corporation, casting himself as a defender of authors’ rights, challenged his interlocutor’s incredulity with the following assertion: given today’s diversity of authors, ‘more of them depend on limitations and exceptions than on exclusive rights’. Some might cringe at the resemblance of this credo to Orwell’s ‘Freedom Is Slavery!’ Nonetheless, I would like to take seriously the proposition that today’s authors need copyright exceptions and limitations more than they need exclusive rights.

First, I will test the proposition by examining what one might call authorship-oriented exceptions, from ‘fair abridgement’ in early English cases to the …

Reaching Out For Green Policies: National Environmental Policies In The Wto Legal Order, Petros C. Mavroidis

Faculty Scholarship

The WTO does not squarely address the issue of jurisdictional ambit of national policies (affecting trade). And yet, absent some agreement as to what trading nations can and cannot do, the WTO loses much of its effectiveness. In the absence of explicit regulation of the issue in the WTO contract, one would reasonably expect WTO Members to behave in line with the postulates governing allocation of jurisdiction embedded in public international law. WTO practice evidences neither an explicit acceptance nor a refusal of these rules.

Exporting Standards: The Externalization Of The Eu's Regulatory Power Via Markets, Anu Bradford

Faculty Scholarship

This Article examines the unprecedented and deeply underestimated global power that the EU is exercising through its legal institutions and standards, and how it successfully exports that influence to the rest of the world. Introducing the notion of “the Brussels Effect,” the Article shows how market forces alone are sufficient to convert EU standards into global standards. Without the need to use international institutions or seek other nations’ cooperation, the EU has a strong and growing ability to promulgate regulations that become entrenched in the legal frameworks of developed and developing markets alike, leading to a notable “Europeanization” of many …

Putting Stored-Value Cards In Their Place, Liran Haim, Ronald J. Mann

Faculty Scholarship

This Essay explores the effects of stored-value cards on social welfare. We argue that stored-value cards, in general, are socially beneficial payment devices. Their burgeoning use benefits society in three main plains. First, by replacing paper-based instruments in market segments previously inaccessible to card-based payments, stored-value cards lower the private and public costs of payment transactions. Second, by extending the use of card-based payment systems towards lower- and middle-income households, stored-value cards foster inclusion of those households in the financial mainstream of our society. Third, by operating without an extension of credit, stored-value cards help to limit the uniquely American …

The Supreme Court As A Constitutional Court, Jamal Greene

Faculty Scholarship

Political institutions are always works in progress. Their practical duties and aims as instruments of governance may not always match their constitutional blueprints or historical roles. Political offices might not always have the power to do what their constituent officers either need or want to do. A polity's assessment of whether the desired power is a need or a want may indeed mark a boundary between law and politics in the domain of institutional structure. The law gives, or is interpreted to give, political organs the tools they need to function effectively. They must fight for the rest.

(Anti)Canonizing Courts, Jamal Greene

Faculty Scholarship

Within U.S. constitutional culture, courts stand curiously apart from the society in which they sit. Among the many purposes this process of alienation serves is to “neutralize” the cognitive dissonance produced by Americans’ current self-conception and the role our forebears’ social and political culture played in producing historic injustice. The legal culture establishes such dissonance in part by structuring American constitutional argument around anticanonical cases: most especially “Dred Scott v. Sandford,” “Plessy v. Ferguson,” and “Lochner v. New York.” The widely held view that these decisions were “wrong the day they were decided” emphasizes the role of independent courts in …

Gender Politics And Child Custody: The Puzzling Persistence Of The Best-Interest Standard Child Custody Decisionmaking, Elizabeth S. Scott, Robert E. Emery

Faculty Scholarship

The best-interests-of-the-child standard has been the prevailing legal rule for resolving child-custody disputes between parents for nearly forty years. Almost from the beginning, it has been the target of academic criticism. As Robert Mnookin famously argued in a 1976 article, "best interests" are vastly indeterminate – more a statement of an aspiration than a legal rule to guide custody decisionmaking. The vagueness and indeterminacy of the standard make outcomes uncertain and gives judges broad discretion to consider almost any factor thought to be relevant to the custody decision. This encourages litigation in which parents are motivated to produce hurtful evidence …

The Story Of Chevron: The Making Of An Accidental Landmark, Thomas W. Merrill

Faculty Scholarship

Chevron U.S.A. Inc. v. NRDC is one of the most famous cases in administrative law, but it was not regarded that way when it was decided. To the justices who heard the case, Chevron was a controversy about the validity of the "bubble" concept under the Clean Air Act, not about the standard of review of agency interpretations of statutes. Drawing on Justice Blackmun's papers, Professor Merrill shows that the Court was initially closely divided, but Justice Stevens' opinion won them over, with no one paying much attention to his innovations in the formulation of the standard of review or …

Step Zero After City Of Arlington, Thomas W. Merrill

Faculty Scholarship

The thirty-year history of Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. is a story of triumph in the courts and frustration on the part of administrative law scholars. Chevron's appeal for the courts rests in significant part on its ease of application as a decisional device. Questions about the validity of an agency's interpretation of a statute are reduced to two inquiries: whether the statute itself provides a clear answer and, if not, whether the agency's answer is a reasonable one. The framework can be applied to virtually any statutory interpretation question resolved by an agency, and …

The Berkeley Transactional Practice Project Competencies/Skills Survey, Eric L. Talley

Faculty Scholarship

This set of slides, presented by UC Berkeley Professor Eric Talley to the California State Bar Task Force on Admissions Regulation Reform, summarizes the findings of a survey of transaction-focused attorneys and faculty regarding necessary skills and competencies. The survey documents several areas that are highly valued by transaction-oriented attorneys, but which tend not to be the focus of many proposed competencies-based reforms that focus more exclusively on litigation oriented areas.

Irredeemably Inefficient Acts: A Threat To Markets, Firms, And The Fisc, Alex Raskolnikov

Faculty Scholarship

This Article defines and explores irredeemably inefficient acts – a conceptually distinct and empirically important category of socially undesirable conduct. Though inefficient behavior is, no doubt, pervasive, the standard view holds that inefficient conduct may be converted into efficient behavior by forcing actors to internalize the external harms of their decisions. For some acts, however such conversion is impossible. These acts are not just inefficient forms of otherwise socially beneficial activities – they are not just contingently inefficient. Rather, they are inefficient at their core; they reduce social welfare no matter what the regulator does. These irredeemably inefficient (or just …

Market Efficiency After The Financial Crisis: It's Still A Matter Of Information Costs, Ronald J. Gilson, Reinier Kraakman

Faculty Scholarship

Contrary to the views of many commentators, the Efficient Capital Market Hypothesis ("ECMH"), as originally framed in financial economics, was not "disproven" by the Subprime Crisis of 2007-2008, nor has it been shown to be irrelevant to the project of regulatory reform of financial markets. To the contrary, the ECMH points to commonsense reforms in the wake of the Crisis, some of which have already been adopted. The Crisis created a lot of losers – from individual investors to pension funds and German Landesbanken – who purchased mortgage-backed securities that they did not, and perhaps could not, understand, and it …

Property And The Right To Exclude Ii, Thomas W. Merrill

Faculty Scholarship

In 1998 I published a short essay entitled Property and the Right to Exclude. It appeared in an issue of the Nebraska Law Review honoring Lawrence Berger, a long-time property professor at Nebraska. The essay has been rather widely cited, but I have my doubts as to whether it has been widely read. A review of citations in Westlaw suggests that the essay is commonly identified as arguing that the right to exclude is the "sine qua non" of property, a statement that appears in the opening paragraph. The typical citing author takes this to mean that …

Three Discount Windows, Kathryn Judge

Faculty Scholarship

It is widely assumed that the Federal Reserve is the lender of last resort in the United States and that the Fed's discount window is the primary mechanism through which it fulfills this role. Yet, when banks faced liquidity constraints during the 2007-2009 financial cfisis (the Cisis), the discount window played a relatively small role in providing banks much needed liquidity. This is not because banks forewent government-backed liquidity; rather, they sought it elsewhere. First, they increased their reliance on collateralized loans, known as advances, from the Federal Home Loan Bank System, a little-known government-sponsored enterprise that grew in size …

Protecting Reliance, Victor P. Goldberg

Faculty Scholarship

Reliance plays a central role in contract law and scholarship. One party relies on the other's promised performance, its statements, or its anticipated entry into a formal agreement. Saying that reliance is important, however, says nothing about what we should do about it. The focus of this Essay is on the many ways that parties choose to protect reliance. The relationship between what parties do and what contract doctrine cares about is tenuous at best. Contract performance takes place over time, and the nature of the parties 'future obligations can be deferred to take into account changing circumstances. Reliance matters …

Fair Use For Free, Or Permitted-But-Paid?, Jane C. Ginsburg

Faculty Scholarship

The U.S. Supreme Court in Sony Corporation of America v. Universal City Studios fended a fork in the fair use road. The Court there upset the longstanding expectation that uses would rarely, if ever, be fair when the whole of a work was copied. In the aftermath of that decision, lower courts have rendered a plethora of decisions deeming the copying of an entire work (even with no additional authorship contribution) a fair use, and therefore "free" in both senses of the word. A perceived social benefit or some market failure appears to motivate these decisions. This is because fair …

Why Restate The Bundle? The Disintegration Of The Restatement Of Property, Thomas W. Merrill, Henry E. Smith

Faculty Scholarship

The American Law Institute (ALI) has devoted a great deal of time and energy to restating the law of property. To date, the ALI has produced 17 volumes that bear the name First, Second, or Third Restatement of Property. There is unquestionably much that is valuable in these materials. On the whole, however, the effort has been a disappointment. Some volumes seek faithfully to restate the consensus view of the law; others are transparently devoted to law reform. The ratio of reform to restatement has increased over time, to the point where significant portions of the Third Restatement …