Law Commons^™

On The Theoretical Foundations For Regulating Financial Markets, Katharina Pistor

Faculty Scholarship

How we think about financial markets determines how we regulate them. Since the 1970s modern finance theory has shaped how we think about and regulate financial markets. It is based on the notion that markets are or can be made (more) efficient. Financial markets have been deregulated when they were thought to achieve efficient outcomes on their own; and regulation was designed to lend crutches to them when it appeared that they needed support. While modern finance theory has suffered some setbacks in the aftermath of the global crisis, defenders hold that improving market efficiency should still be the overriding …

Dating The State: The Moral Hazards Of Winning Gay Rights, Katherine M. Franke

Faculty Scholarship

On August 1, 2009, a masked man dressed in black carrying an automatic weapon stormed into Beit Pazi in Tel Aviv, the home of the Aguda, the National Association of GLBT in Israel. He opened fire on a group of gay and lesbian teenagers who were meeting in the basement for "Bar-Noar," or "Youth Bar," killing two people and wounding at least ten others. This terrible act of violence attracted immediate national and international attention and condemnation. President Simon Peres declared the next day:

[T]he shocking murder carried out in Tel Aviv yesterday against youths and young people is a …

Overcriminalization For Lack Of Better Options: A Celebration Of Bill Stuntz, Daniel C. Richman

Faculty Scholarship

The unity of Bill Stuntz's character – his profound integrity – makes it easy to move from a celebration of his friendship (which I’ve treasured since we first met back in 1985) to one of his scholarship, for creativity, wisdom, and humility are strengths not just of Bill himself but of his work. Even as his broad brush strokes have fundamentally advanced our understanding of the interplay between substantive criminal law, criminal procedure, and criminal justice institutions over time, Bill's work – like Bill himself – welcomes and endures sustained engagement. Humility is appropriate for me, too, as I offer …

Encouraging Energy Efficiency Through Nepa Comments, Adam Reidel

Sabin Center for Climate Change Law

Environmental impact statements (EISs) should analyze the potential for energy efficiency to reduce the adverse impacts of new projects, to make the projects smaller, or to provide more benign alternatives. The National Environmental Policy Act (NEPA) and its state counterparts require EISs for major actions, and provide numerous opportunities for public participation in the EIS process. These opportunities can be used to press for greater consideration, and perhaps adoption, of energy efficiency measures. This paper serves as a guide to commenting on and challenging EISs on the basis of insufficient consideration of the issues of energy efficiency and conservation. It …

Critical Theory And Institutional Design: David Trubek's Path To New Governance, William H. Simon

Faculty Scholarship

This brief essay suggests that the discursive practices associated with Critical Legal Studies and related movements have prescriptive implications for institutional design. The essay, a contribution to a festschrift for David M. Trubek, considers the trajectory of Trubek’s work from his engagement with various critical projects to his recent sympathetic interpretation of “new governance” in the European Union. The tacit prescriptive implications of the critical work resonate with some of the distinctive institutional features found in new governance.

Introduction, Katherine M. Franke

Faculty Scholarship

Each year Columbia Law School’s Center for Gender Sexuality Law selects a scholar whose work has made an important impact on the study and practice of gender and/or sexuality law. For 2010 we selected Judith Butler, the Maxine Elliot Professor in the Departments of Rhetoric and Comparative Literature at the University of California, Berkeley. In March of 2010, we held a Symposium recognizing the multiple domains of theory and activism in which Butler’s mark has been profound, and oft times paradigm shifting.

Columbia Law School has the great fortune of having developed one of the deepest and most diverse faculties …

Serial Litigation In Administrative Law: What Can Repeat Cases Tell Us About Judicial Review, Gillian E. Metzger

Faculty Scholarship

In Deference and Dialogue in Administrative Law, Emily Meazell takes up the topic of serial administrative law litigation. These repeated rounds of challenges and remands, which Meazell finds are particularly prevalent in contexts of risk regulation, provide a new lens on court-agency relationships. Meazell closely reviews several instances of such litigation, spanning topics as diverse as endangered species, potential workplace carcinogens, and financial qualifications of nuclear plant operators. She argues that such close examination reveals a process of dialogue, with agencies ultimately (if not immediately) responding to judicial concerns and courts in turn acknowledging administrative responses.

Free Lunches? Wto As Public Good, And The Wto's View Of Public Goods, Petros C. Mavroidis

Faculty Scholarship

The WTO can be viewed as a public good in that it provides a forum for negotiations which also produces the necessary legal framework to act as a support for agreed liberalization. To avoid any misunderstandings, in this article the discussion focuses on the WTO as a forum and a set of agreements, not on free trade. Since the legal agreements coming under its aegis are for good reasons incomplete, the WTO provides an additional public good by ‘completing’ the original contract through case law. The importance of this feature increases over time as tariffs are driven towards irrelevance. In …

Livestock And Climate Change – Annotated Bibliography, Julia Christian, Andrew Kirchner, Derek Nelson, Jessica A. Wentz

Sabin Center for Climate Change Law

Over the past two decades, efforts to address climate change have primarily focused on reducing carbon dioxide (CO2) from fossil fuel combustion. The potential contribution of livestock production to climate change has been largely overlooked. Recent scholarship suggests that activities related to livestock production constitute a significant proportion of anthropogenic greenhouse gas (GHG) emissions. Although estimates of livestock’s contribution to our overall GHG emissions range broadly – from 18% to 51% – there is no question that this impact warrants serious consideration from policy makers.

Law, Economics, And The Burden(S) Of Proof, Eric L. Talley

Faculty Scholarship

This chapter presents an overview of the theoretical law and economics literature on the burden of proof within tort law. I begin by clarifying core legal definitions within this topic, demonstrating that the burden of proof actually refers to at least five doctrinal concepts that substantially overlap but are not completely interchangeable. I then provide a conceptual roadmap for analyzing the major extant contributions to this topic within theoretical law and economics, emphasizing three key dimensions that organize them: (a) where they fall in the positive-normative spectrum; (b) what type of underlying modeling framework they employ (ranging from decision theoretic …

The Measure Of A Mac: A Quasi-Experimental Protocol For Tokenizing Force Majeure Clauses In M&A; Agreements, Eric L. Talley, Drew O'Kane

Faculty Scholarship

This paper develops a protocol for using a familiar data set on force majeure provisions in corporate acquisitions agreements to tokenize and calibrate a machine-learning algorithm of textual analysis. Our protocol, built on regular expression (RE) and latent semantic analysis (LSA) approaches, serves to replicate, correct, and extend the hand-coded data. Our preliminary results indicate that both approaches perform well, though a hybridized approach improves predictive power further. Monte Carlo simulations suggest that our results are generally robust to out-of-sample predictions. We conclude that similar approaches could be used more broadly in empirical legal scholarship, especially including in business law.

Energy Policy: Past Or Prologue?, Michael J. Graetz

Faculty Scholarship

The United States was remarkably complacent about energy policy until the Arab oil embargo of 1973. Since then, we have relied on unnecessarily costly regulations and poorly designed subsidies to mandate or encourage particular forms of energy production and use. Our presidents have quested after an elusive technological “silver bullet.” Congress has elevated parochial interests and short-term political advantages over national needs. Despite the thousands of pages of energy legislation enacted over the past four decades, Congress has never demanded that Americans pay a price that reflects the full costs of the energy they consume. Given our nation’s economic fragility, …

Contracts, Victor P. Goldberg

Faculty Scholarship

This article focuses on the general problems confronting parties designing a contractual relationship. Contracts concern the future, which is both uncertain and influenced by the behavior of the parties. This presents the parties with a number of problems, the solutions for which are imperfect. Contract doctrine can facilitate their efforts, but it can also be an impediment. Contract design and contract law are discussed.

Legal Issues In Regulating Imports In State And Regional Cap And Trade Programs, Erin Parlar, Michael Babakitis, Shelley Welton

Sabin Center for Climate Change Law

Regulating leakage presents potential legal challenges: in our federal governmental structure, states are limited by the Constitution in the extent to which they can regulate activities occurring beyond their own borders, and may be preempted by federal statutes from regulating certain interstate activities altogether. This paper analyzes the legal hurdles that RGGI may face should it choose to address emissions leakage through regulating imported electricity. It focuses on two legal issues in particular, which are generally thought to be the most likely arguments raised against imports regulations: (1) whether imports regulations violate the dormant Commerce Clause (DCC) of the Constitution; …

Analysis Of California, Washington, And New York Insurer Climate Risk Surveys For The 2011 Reporting Year, Irene Shulman

Sabin Center for Climate Change Law

Climate change has the potential to affect the availability and affordability of insurance across most major insurance categories. The National Association of Insurance Commissioners (NAIC) adopted the Insurer Climate Risk Disclosure Survey in 2009, and in February 2012, California, Washington, and New York administered the survey to insurance companies that write in excess of $300 million in premiums annually. This working paper summarizes and analyzes the survey responses that were submitted to California, Washington, and New York in 2012 for the 2011 reporting year. The working paper found that the majority of the 400 survey responses indicated that climate change …

Public Utilities Commissions & Energy Efficiency: A Handbook Of Legal And Regulatory Tools For Commissioners & Advocates, Shelley Welton, Chen Xu, Brian Troxler, Chao Huang, Andrew Kirchner, Krista Yacovone, Maria Hristova

Sabin Center for Climate Change Law

This handbook examines the range of legal and regulatory tools that state PUCs have to promote energy efficiency. It draws from a broad and deep body of literature on the topic, an examination of relevant state laws and regulations, and interviews with experts in the private and public sectors. The handbook may prove useful in those states that are more advanced in their energy efficiency policies by illuminating potential refinements or alternative design options in areas that prove to be sticking points. It is intended primarily, however, as a resource for those in states that are not yet as advanced …

Bundling Solutions For Financing Building Energy Efficiency Retrofit Projects In Residential And Commercial Buildings, Michael Kerstetter

Sabin Center for Climate Change Law

Buildings are responsible for approximately 40% of overall national energy consumption and renewed investment in energy efficiency (EE) projects and measures in that sector, in particular, could potentially save consumers and the U.S. economy billions of dollars, create jobs and significantly reduce the emission of greenhouse gasses. Accordingly, a comprehensive and well crafted economy-wide EE solution should include programs for the upgrading or retrofitting of existing residential and commercial structures. Although there is already investment in these types of projects, significant potential still remains for further investment. The subjects discussed in this paper could serve as a useful starting point …

State Dynamism, Federal Constraints: Possible Constitutional Hurdles To Cross-Border Cap-And-Trade, Shelley Welton

Sabin Center for Climate Change Law

This article explores the constitutional viability of expanding domestic, state-run cap-and-trade programs to include Canadian provinces. It examines four constitutional doctrines that might be used to challenge these cross-border collaborations: preemption, the dormant foreign affairs power, the Compact Clause, and the dormant foreign Commerce Clause. Ultimately, it makes the case that while these doctrines are flexible enough that they could be interpreted to prohibit cross-border cap-and-trade, courts would be wise to let these novel and commendable state initiatives proceed.

From Private Violence To Mass Incarceration: Thinking Intersectionally About Women, Race, And Social Control, Kimberlé W. Crenshaw

Faculty Scholarship

The structural and political dimensions of gender violence and mass incarceration are linked in multiple ways. The myriad causes and consequences of mass incarceration discussed herein call for increased attention to the interface between the dynamics that constitute race, gender, and class power, as well as to the way these dynamics converge and rearticulate themselves within institutional settings to manufacture social punishment and human suffering. Beyond addressing the convergences between private and public power that constitute the intersectional dimensions of social control, this Article addresses political failures within the antiracism and antiviolence movements that may contribute to the legitimacy of …

Navigating Eu Law And The Law Of International Arbitration, George A. Bermann

Faculty Scholarship

The European Union and international arbitration are two robust legal regimes that have managed to develop largely in accordance with their own respective “first principles,” and they have accordingly thrived. This article initially explains why that has been the case.

But the era of parallelism between the regimes has ended, and rather suddenly. This article identifies the two principal fronts on which tensions between EU law and international arbitration law have emerged. Interestingly, both commercial and investment arbitration are implicated.

A first front entails a conflict between the European Court of Justice's (ECJ's) expansive notions of EU public policy and …

Political Disobedience, Bernard E. Harcourt

Faculty Scholarship

The political phenomenon that was born in Zuccotti Park in the fall of 2011 and spread rapidly across the nation and abroad immediately challenged our vocabulary, our grammar, our political categories – in short, our very language of politics. Although it was quickly apparent that a political paradigm shift had taken place before our eyes, it was hard to discern what Occupy Wall Street really represented, politically. It is time to begin to name this phenomenon and in naming to better understand it. So let me propose a term: political disobedience.

Property As Modularity, Thomas W. Merrill

Faculty Scholarship

Professor Henry Smith’s Property as the Law of Things urges a return to an older conception of property as rights with respect to things – and justifies this in terms of a very new conception of property based on modularity. Throughout, he highlights the importance of information costs in determining the structure of property law, starting with a baseline of in rem rights of exclusion supplemented by governance rules to deal with exceptional situations. I fully agree with his emphasis on the centrality of things in the law of property, the in rem nature of property, the primacy of exclusion …

Integrating Humanities Into Family Law And The Problem With Truths Universally Acknowledged, Carol Sanger

Faculty Scholarship

Family Law differs from the other subjects under discussion today in at least two respects. As a matter of curricular location, it is not always considered a core course. I am therefore grateful for Melissa Murray’s public recognition of the “coreness” of Family Law within a legal education. Second, if one purpose of integrating humanities into the core curriculum is to humanize the law, it is probably safe to say that Family Law is already humanized enough. The subject comes fully loaded with all too human conflict and suffering: cruelty, anger, sex, disappointed expectations, and all of these play out …

Virtue Ethics And Efficient Breach, Avery W. Katz

Faculty Scholarship

The concept of "efficient breach" – the idea that a contracting party should be encouraged to breach a contract and pay damages if doing so would be more efficient than performance – is probably the most influential concept in the economic analysis of contract law. It is certainly the most controversial. Efficient breach theory has been criticized from both within and without the economic approach, but its most prominent criticism is that it violates deontological ethics – that the beneficiary of a promise has a right to performance, so that breaching the promise wrongs the promisee.

This essay argues that …

The "Gateway" Problem In International Commercial Arbitration, George A. Bermann

Faculty Scholarship

Participants in international commercial arbitration have long recognized the need to maintain arbitration as an effective and therefore attractive alternative to litigation, while still ensuring that its use is predicated on the consent of the parties and that the resulting awards command respect. A priori, at least, all participants – parties, counsel, arbitrators, arbitral institutions – have an interest in ensuring that arbitration delivers the various advantages associated with it, notably speed, economy, informality, technical expertise, and avoidance of national fora, while producing awards that withstand judicial challenge and otherwise enjoy legitimacy.

National courts play a potentially important policing role …

Dispersed Ownership: The Theories, The Evidence, And The Enduring Tension Between "Lumpers" And "Splitters", John C. Coffee Jr.

Faculty Scholarship

This article argues that dispersed ownership resulted less from inexorable forces and more from private ordering. Neither legal nor political conditions mandated or prevented the appearance of dispersed ownership. Rather, entrepreneurs, investment bankers, and investors — all seeking to maximize value — sometimes saw reasons why selling control into the public market would maximize value for them. But when and why? That is the article's focus. It argues that law played less of a role than specialized intermediaries — investment banks, securities exchanges, and other agents — who found it to be in their self-interest to foster dispersed ownership and …

Reforming Derivative Taxation, Alex Raskolnikov

Faculty Scholarship

This brief essay outlines three benchmarks for evaluating alternative ways of taxing capital income, summarizes anticipatory, retroactive, and accrual-based proposals for reforming the taxation of derivatives, and offers guidelines for evaluating more limited reforms. It is intended as an introduction to key concepts, tensions, and ideas for reforming the taxation of financial instruments.

One (Firm) Is Not Enough: A Legal-Economic Analysis Of Ec-Fasteners, Chad P. Brown, Petros C. Mavroidis

Faculty Scholarship

The WTO’s Appellate Body (AB) dealt with a number of issues for the first time in the Report of EC-Fasteners. Importantly, the AB discussed the consistency of the European Union (EU) regulation with the multilateral rules on the conditions for deviating from the obligation to calculate individual dumping margins. Although China formally won the argument, the AB may have opened the door to treat China as a non-market economy (NME) even beyond 2016 when China’s NME-status was thought to expire under the terms of China’s 2001 WTO Accession Protocol. The AB further dealt with numerous other issues ranging from statistical …

Quasi-Property: Like, But Not Quite Property, Shyamkrishna Balganesh

Faculty Scholarship

Quasi-property interests refer to situations in which the law seeks to simulate the idea of exclusion, normally associated with property rights, through a relational liability regime, by focusing on the nature and circumstances of the interaction in question, which is thought to merit a highly circumscribed form of exclusion. In this Article, I unpack the analytical and normative bases of quasi-property interests, examine the primary triggering events that cause courts to invoke the category, and respond to potential objections to the recognition of quasi-property as an independent category of interests in the law.

Moral Rights In The U.S.: Still In Need Of A Guardian Ad Litem, Jane C. Ginsburg

Faculty Scholarship

Over ten years ago, in the pages of this Journal, I inquired whether authors’ “moral rights” had come of (digital) age in the U.S. Ever-hopeful at that time, I suggested that then-recent legislation enacted to enable the copyright law to respond to the challenges of digital media might, in addition to its principal goal of securing digital markets for works of authorship, also provide new means to protect authors’ interests in receiving attribution for their works and in safeguarding their integrity. The intervening years’ developments, however, indicate that, far from achieving their majority, U.S. authors’ moral rights remain in their …