Law Commons^™

Developing A Pedagogy Of Beneficiary Accountability In The Representation Of Social Justice Non-Profit Organizations, Amber Baylor, Daria Fisher Page

Faculty Scholarship

This article seeks to begin a conversation on how we teach the problem of beneficiary accountability in the representation of organizations with social justice missions: How do we guide students towards a fuller understanding of the moral responsibility to engage and respect the voices of the communities most directly affected by the non-profit organization’s mission? We look at the issue through the pedagogical lens of our experience supervising clinic students, deconstructing the problems of beneficiary accountability that students faced in the representation of two social justice organizations, surveying relevant legal scholarship on organizational representation and community lawyering, and considering alternative …

Maximinimalism, Jamal Greene

Faculty Scholarship

When John Roberts became Chief Justice of the United States more than a decade ago, commenters frequently described him as a minimalist. Although Chief Justice Roberts himself resisted this label, he fairly inspired it by advocating for more consensus among his colleagues and by famously recounting to a Georgetown Law Commencement audience his view that “[i]f it is not necessary to decide more to dispose of a case ... it is necessary not to decide more.” The suggestion that the Court decide significant issues one case at a time recalls the work of Cass Sunstein, the American academy’s most articulate …

The Questionable Origins Of The Copyright Infringement Analysis, Shyamkrishna Balganesh

Faculty Scholarship

Central to modern copyright law is the test for determining infringement, famously developed by Judge Jerome Frank in the landmark case of Arnstein v. Porter. The “Arnstein test,” which courts continue to apply, demands that the analysis be divided into two components: actual copying – the question whether the defendant did in fact copy – and improper appropriation – the question whether such copying, if it did exist, was unlawful. Somewhat counterintuitively, though, the test treats both components as pure questions of fact, requiring that even the question of improper appropriation go to a jury. This jury-centric approach …

Sadly, The Paris Agreement Isn't Nearly Enough, Michael B. Gerrard

Faculty Scholarship

Climate change is a major contributor to migration and displacement. Persistent drought forced as many as 1.5 million Syrian farmers to move to overcrowded cities, contributing to social turmoil and ultimately a civil war that drove hundreds of thousands of people to attempt to cross the Mediterranean into Europe. Drought also worsened refugee crises in the Sahel, the Horn of Africa, and other parts of the continent.

Three Major Developments In International Climate Change Law, Michael B. Gerrard, Edward Mctiernan

Faculty Scholarship

The past month has seen a remarkable set of developments at the international level in controlling greenhouse gas (GHG) emissions – the entry into force of the Paris Climate Agreement, and major new agreements on controlling hydrofluorocarbon emissions and pollution from airplanes. The stunning election of Donald Trump on Tuesday casts the future of some but not all of these efforts into doubt, however.

What Once Was Lost Must Now Be Found: Rediscovering An Affirmative Action Jurisprudence Informed By The Reality Of Race In America, Lee C. Bollinger

Faculty Scholarship

This academic year has seen college and university students across America calling on their institutions to do more to create campus cultures supportive of African American students and other underrepresented minorities. There have been demands to increase faculty and student diversity, change curricular requirements, and adopt mandatory cultural sensitivity trainings. There have been efforts to rename buildings, remove images, and abandon symbols associating schools with major historic figures who were also proponents of slavery, segregation, or other forms of racism. As in all tumultuous periods for higher education, these events have provoked useful discussions about fundamental principles and brought to …

Constitutional Rhetoric, Jamal Greene

Faculty Scholarship

For close to a century, students of judicial behavior have suggested that what judges think is not altogether the same as what they say. Within the legal academy, this claim has long been associated with legal realists who have argued that the formal legal rules explicated in judicial opinions are at least partly epiphenomenal, masking the influence that the personal characteristics and dispositions of adjudicators exercise over legal outcomes. Political scientists have argued, variously, that such outcomes are determined by ideology, social background, or political, professional, or other institutional constraints.

The notion that at least some “extralegal” factors influence judicial …

Testimony On Pennsylvania Sb1306: No Additional Protections For Religious Freedom, Katherine M. Franke, Burton Caine, Lenore F. Carpenter, Eric A. Feldman, Thersa Glennon, Nancy J. Knauer, Jules Lobel, Wendell Pritchett, Dara E. Purvis, Brishen Rogers, Victor C. Romero, Kathryn M. Stanchi, Nancy A. Welsh

Faculty Scholarship

On behalf of the Public Rights/Private Conscience Project (PRPCP) at Columbia Law School I offer the following legal analysis of Senate Bill 1306. Overall, the current version of the bill promises to modernize Pennsylvania’s Human Relations Act by expanding antidiscrimination protections in employment to include sexual orientation and gender identity-based discrimination. Were the Pennsylvania legislature to pass SB 1306, the Commonwealth would join twenty-two states that include sexual orientation and nineteen states that include gender identity in their laws assuring equal employment opportunities for their citizens.

Testimony Regarding The First Amendment Defense Act (Fada), Katherine M. Franke, Elizabeth A. Sepper, Ariela Gross, Sylvia A. Law, Martin S. Flaherty, Suzanne B. Goldberg, Carol Sanger, J. Stephen Clark, Florens Wagman Roisman, Gregory Magarian, Caroline Mala Corbin, Nomi Stolzenberg, Carlos A. Ball, Aaron Ezra Waldman, Aziza Ahmed, Jennifer A. Drobac, Deborah Widiss, Arthur S. Leonard, Martha M. Ertman

Faculty Scholarship

My testimony today is delivered on behalf of twenty leading legal scholars who have joined me in providing an in depth analysis of the meaning and likely effects of the First Amendment Defense Act (FADA), were it to become law. We feel particularly compelled to provide testimony to this Committee because the first legislative finding set out in FADA declares that: “Leading legal scholars concur that conflicts between same-sex marriage and religious liberty are real and should be addressed through legislation.” As leading legal scholars we must correct this statement: we do not concur that conflicts between same-sex marriage and …

Learning To Counter Mass Incarceration, Brett Dignam

Faculty Scholarship

Limited access to education inside American prisons imposes a devastating condition of confinement that cripples both the offender and the community. The prolonged and empty time that characterizes prison today affords little mental stimulation, productive engagement, or preparation for post-release employment. Recent research and analysis has found that education during incarceration correlates with lower rates of recidivism and increases the likelihood and quality of post-release employment. There is a pronounced racially disparate dimension to these effects that are concentrated in communities where investment by the criminal justice system is extraordinarily high. Failure to provide education and the resulting higher rates …

Preliminary Comments On Restatement Of Copyright, Draft 2, Jane C. Ginsburg, June M. Besek

Faculty Scholarship

Thank you for the opportunity to comment on Preliminary Draft 2 of the Restatement of Copyright. These are preliminary comments, given the short time frame provided to review the draft, and we anticipate sending further comments after we’ve had the opportunity to study the draft further, or as a follow-up to the Advisers’ meeting and the Consultative Group meeting on November 10 and 11, 2016, respectively.

Debunking The Myth Of The Copyright Troll Apocalypse, Shyamkrishna Balganesh, Jonah B. Gelbach

Faculty Scholarship

Professor Matthew Sag’s Copyright Trolling, An Empirical Study tells a riveting tale of a litigation system run amok.1 A plaintiff files suit in federal court. Each instance of alleged unlawful conduct targeted in the suit may well entail little in the way of actual damages, and for that reason the complaint demands statutory rather than actual damages. The conduct in question is as common as it is allegedly unlawful and, in some people’s views, this conduct isn’t particularly objectionable. And the economics of the litigation in question simply don’t make sense without the aggregation of claims related to many individuals. …

Copyright And Good Faith Purchasers, Shyamkrishna Balganesh

Faculty Scholarship

Good faith purchasers for value – individuals who unknowingly and in good faith purchase property from a seller whose own actions in obtaining the property are of questionable legality – have long obtained special protection under the common law. Despite the seller’s own actions being tainted, these purchasers obtain valid title and are free to transfer the property without restriction. Modern copyright law, however, does just the opposite. Individuals who unknowingly, and in good faith, purchase property embodying an unauthorized copy of a protected work are altogether precluded from subsequently alienating such property without running afoul of copyright’s distribution right. …

Executive Federalism Comes To America, Jessica Bulman-Pozen

Faculty Scholarship

This Article proposes a different way of thinking about contemporary American governance, looking to an established foreign practice. Executive federalism – “processes of intergovernmental negotiation that are dominated by the executives of the different governments within the federal system” – is pervasive in parliamentary federations, such as Canada, Australia, and the European Union. Given the American separation of powers arrangement, executive federalism has been thought absent, even “impossible,” in the United States. But the partisan dynamics that have gridlocked Congress and empowered both federal and state executives have generated a distinctive American variant.

Viewing American law and politics through the …

Can A Little Representation Be A Dangerous Thing?, Colleen F. Shanahan, Anna E. Carpenter, Alyx Mark

Faculty Scholarship

Access to justice interventions that provide a little representation, including nonlawyer representation and various forms of limited legal services, may be valuable solutions for low- and middle-income Americans. However, a thoughtful approach to improving access to justice efforts should recognize that a little representation may have risks. In particular, one potential risk of a little representation is that while it provides assistance with a discrete legal need in a specific moment, the nature of the assistance is incompatible with challenging the law. As a result, individual litigants do not have the benefit of legal challenges in their own cases and …

Lawyers, Power, And Strategic Expertise, Colleen F. Shanahan, Anna E. Carpenter, Alyx Mark

Faculty Scholarship

The only sound in a courtroom is the hum of the ventilation system. It feels as if everyone in the room is holding their breath …. Litigants are uneasy in the courthouse, plaintiffs and defendants alike. They fidget. They keep their coats on. They clutch their sheaves of paper-rent receipts and summonses, leases and bills. You can always tell the lawyers, because they claim the front row, take off their jackets, lay out their files. It's not just their ease with the language and the process that sets them apart. They dominate the space.

This empirical study analyzes the experience …

The Wto Dispute Settlement System 1995-2016: A Data Set And Its Descriptive Statistics, Louise Johannesson, Petros C. Mavroidis

Faculty Scholarship

In this paper, we provide some descriptive statistics of the first twenty years of the WTO (World Trade Organization) dispute settlement that we have extracted from the data set that we have put together, and made publicly available.

The statistical information that we present here is divided into three thematic units: the statutory and de facto duration of each stage of the process, paying particular attention to the eventual conclusion of litigation; the identity and participation in the process of the various institutional players, that is, not only complainants and defendants, but also third parties, as well as the WTO …

Trade, Social Preferences, And Regulatory Cooperation: The New Wto-Think, Thomas J. Bollyky, Petros C. Mavroidis

Faculty Scholarship

This paper advocates changes in the corporate governance of the World Trade Organization (WTO) to reflect the decline in tariffs and other border restraints to commerce and the emerging challenges of advancing freer trade and better regulation cooperation in a world economy dominated by global value chains. Together, these changes form an integration strategy that we refer to as the new WTO Think. This strategy remains rooted in the original rationale of the General Agreement on Trade and Tariffs (GATT) of reducing the negative externalities of unilateral action and solving important international coordination challenges, but is more inclusive of regulators …

Ask For The Moon, Settle For The Stars: What Is A Reasonable Period To Comply With Wto Awards?, Petros C. Mavroidis, Niall Meagher, Thomas J. Prusa, Tatiana Yanguas

Faculty Scholarship

The World Trade Organization (WTO) dispute settlement process allows a defending Member a “reasonable period of time” (RPT) to implement any findings that its contested measures are inconsistent with WTO law. If agreement on this RPT cannot be reached, Article 21.3(c) of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) provides for the possibility of arbitration on the length of the RPT. The DSU provides limited guidelines on the RPT, stating only that it should not normally exceed 15 months. In practice, Arbitrators have developed the standard that the RPT should reflect the shortest possible period …

The Gang That Couldn't Shoot Straight: The Not So Magnificent Seven Of The Wto Appellate Body, Petros C. Mavroidis

Faculty Scholarship

The WTO Appellate Body (AB) has produced a volume-wise important body of case law, which is often difficult to penetrate, never mind classify. Howse (2016) has attempted a very lucid taxonomy of the case law using the standard of review as benchmark for it. His conclusion is that the AB is quite cautious when facing nondiscriminatory measures, especially measures relating to the protection of human life and health, while it has adopted a more intrusive (into national sovereignty) standard when dealing with trade measures (like antidumping), which are by definition discriminatory as they concern imports only. In my response, I …

Private Standards And The Wto: Reclusive No More, Petros C. Mavroidis, Robert Wolfe

Faculty Scholarship

Private standards are increasing in number, and they affect trade, but their status in the WTO remains problematic. Standards-takers are typically countries with little bargaining power, who cannot affect their terms of trade and thus, even if they possess domestic antitrust laws, will find it hard to persuade standard-setters to take account of their interests. Our concern is to bring more of these standards within the normative framework of the trade regime – that is, we worry that these private forms of social order can conflict with the fundamental norms of transparency and non-discrimination. The WTO membership has consumed itself …

Mfn Clubs And Scheduling Additional Commitments In The Gatt: Learning From The Gats, Bernard Hoekman, Petros C. Mavroidis

Faculty Scholarship

Scheduling additional commitments for policies affecting trade in goods in the GATT has been plagued by two sources of ambiguity: the treatment of changes introduced unilaterally by members subsequent to an initial commitment, and the treatment of new commitments by WTO members pertaining to nontariff policy measures affecting trade in goods. This is not the case for trade in services, as the GATS makes explicit provision for additional commitments to be scheduled. Neither secondary law, in the form of decisions formally adopted by the WTO membership, nor case law has clarified the situation for trade in goods. This matter is …

Dispute Settlement In The Wto: Mind Over Matter, Petros C. Mavroidis

Faculty Scholarship

The basic point I advocate in this paper is that the WTO Dispute Settlement System aims to curb unilateralism. No sanctions can be imposed, unless if the arbitration process is through, the purpose of which is to ensure that reciprocal commitments entered should not be unilaterally undone through the commission of illegalities. There are good reasons though, to doubt whether practice guarantees full reciprocity. The insistence on calculating remedies prospectively, and not as of the date when an illegality has been committed, and the ensuing losses for everybody that could or could not be symmetric, lend support to the claim …

The Effects Of Local Police Surges On Crime And Arrests In New York City, John Macdonald, Jeffery Fagan, Amanda Geller

Faculty Scholarship

The New York Police Department (NYPD) under Operation Impact deployed extra police officers to high crime areas designated as impact zones. Officers were encouraged to conduct investigative stops in these areas. City officials credited the program as one of the leading causes of New York City’s low crime rate. We tested the effects of Operation Impact on reported crimes and arrests from 2004 to 2012 using a difference-in-differences approach. We used Poisson regression models to compare differences in crime and arrest counts before and after census block groups were designated as impact zones compared to census block groups in the …

Gateway-Schmateway: An Exchange Between George Bermann And Alan Rau, Alan Scott Rau, George Bermann

Faculty Scholarship

What role do national courts play in international arbitration? Is international arbitration an “autonomous dispute resolution process, governed primarily by non-national rules and accepted international commercial rules and practices” where the influence of national courts is merely secondary? Or, in light of the fact that “international arbitration always operates in the shadow of national courts,” is it not more accurate to say that national courts and international arbitration act in partnership? On April 27, 2015, the Pepperdine Law Review convened a group of distinguished authorities from international practice and academia to discuss these and other related issues for a symposium …

Designing Corporate Bailouts, Antonio E. Bernardo, Eric L. Talley, Ivo Welch

Faculty Scholarship

Although common economic wisdom suggests that government bailouts are inefficient because they reduce incentives to avoid failure and induce excessive entry by marginal firms, in practice bailouts are difficult to avoid for systemically significant enterprises. Recent experience suggests that bailouts also induce litigation from shareholders and managers complaining about expropriation and wrongful termination by the government. Our model shows how governments can design tax-financed corporate bailouts to reduce these distortions and points to the causes of inefficiencies in real-world implementations such as the Troubled Asset Relief Program. Bailouts with minimal distortion depend critically on the government’s ability to expropriate shareholders …