Law Commons^™

The Tower Of Babel: Human Rights And The Paradox Of Language, Moria Paz

Studio for Law and Culture

Key human rights instruments and leading scholars argue that minority language rights should be treated as human rights, both because language is constitutive of an individual’s cultural identity and because linguistic pluralism increases diversity. These treaties and academics assign the value of linguistic pluralism in diversity. But, as this article demonstrates, major human rights courts and quasi-judicial institutions are not, in fact, prepared to force states to swallow the dramatic costs entailed by a true diversity-protecting regime. Outside narrow exceptions or a path dependent national-political compromise, these enforcement bodies continuously allow the state actively to incentivize assimilation into the dominant …

Leroy Pitzer: Citizen, Voter, Lunatic?, Rabia Belt

Studio for Law and Culture

In a 1905 Ohio case, In re South Charleston Election Contest, Leroy Pitzer was accused of being a “lunatic” or an “idiot” and thus unable to vote in a tight and contest election that ripped the town of South Charleston in half. After intense deliberations – and considering 29 different definitions of lunacy and idiocy – the court decided that something was wrong with Leroy Pitzer, but they could not figure out exactly what. They also could not determine who Pitzer voted for. Unfortunately, without his vote, the election result was a tie and the entire election was rerun.

The …

Trading Away Human Rights, Kaitlin Y. Cordes, Olivier De Schutter

Columbia Center on Sustainable Investment Staff Publications

Trade negotiators in Singapore recently failed to finalize a deal on the long-awaited Trans-Pacific Partnership; they will soon have another chance to complete what would be the world’s largest regional free-trade agreement. But, given serious concerns that the TPP will fail to consider important human-rights implications, that is no cause for celebration.

Fragmented Literal Similarity In The Ninth Circuit: Dealing With Fragmented Takings Of Jazz And Experimental Music, Michael Zaken

Kernochan Center for Law, Media, and the Arts

Newcomers to jazz often ask: Is it true that jazz is all improvised? Somehow the casual and romantic notion that jazz is generated in an entirely spontaneous manner has become deeply rooted in our society.

The notator of any jazz solo, or blues, has no chance of capturing what in effect are the most important elements of the music.... A printed musical example of an Armstrong solo, or of a Thelonious Monk solo, tells us almost nothing except the futility of formal musicology when dealing with jazz.

The difficulty of applying standard infringement measures to musical compositions in a way …

Constitutional Hazard:The California Resale Royalty Act And The Futility Of State-Level Implementation Of Droit De Suite Legislation, Nithin Kumar

Kernochan Center for Law, Media, and the Arts

Répétition d’un Ballet, the famous painting by French artist Edgar Degas, sold for $401,000 in 1965. The jubilant seller bragged that Degas originally asked a mere $100 for the painting. In his early career, celebrated American artist Norman Rockwell sold original works like Homecoming Marine and Breaking Home Ties for a few hundred dollars each. In the last decade, these paintings were resold for $9.2 million and $15.4 million at Sotheby’s auctions, but the Rockwell estate received nothing in these transactions. Over the centuries, great wealth in the arts has rarely translated into great wealth for the artist. Since …

Cipa Creep: The Classified Information Procedures Act And Its Drift Into Civil National Security Litigation, Ian Macdougall

National Security Law Program

This Note documents an incipient trend in the courts and Congress, which I call "CIPA creep," and investigates its implications for civil national security litigation. CIPA – the Classified Information Procedures Act – governs the use of classified information in federal criminal cases. No comparable statute exists in the civil context, where the judge-made state secrets privilege determines whether litigants may use sensitive government information. The prevailing scholarly and popular accounts hold that this privilege, in the tense post-9/11 security environment, transformed from a narrow evidentiary rule into a non-justiciability doctrine that cedes to executive branch officials the power to …

Managing The Public Trust: How To Make Natural Resource Funds Work For Citizens, Andrew Bauer, Perrine Toledano, Malan Rietveld

Columbia Center on Sustainable Investment Staff Publications

Given their collective size – approximately $3.5 trillion in assets as of end-2013 and growing – and concerns about the motivations of their government owners, much has been written on natural resource funds (NRFs), their investments and global influence. However their impacts on governance and public financial accountability at home have received far less attention.

On the one hand, these funds can be used to serve the public interest, for example by covering budget deficits when resource revenues decline, saving for future generations, or helping to mitigate Dutch Disease through fiscal sterilization. On the other hand, they can undermine public …

State Contract Law And Debt Contracts, Colleen Honigsberg, Sharon Katz, Gil Sadka

Ira M. Millstein Center for Global Markets and Corporate Ownership

This paper examines the relationship between debt contracts and state contract law. We first develop an index to evaluate whether each state’s law is favorable or unfavorable to lenders. We then analyze how the contract terms, the frequency of covenant violations, and the repercussions of covenant violations vary across states. We find that cash collateral is most likely to be used when the contract is governed by law that is favorable to debtors and that out-of-state borrowers who use favorable law pay higher yield spreads. In addition, when the law is favorable to lenders, there are significantly fewer covenant violations, …

Toward A Constitutional Review Of The Poison Pill, Lucian A. Bebchuk, Robert J. Jackson Jr.

Ira M. Millstein Center for Global Markets and Corporate Ownership

We argue that the state-law rules governing poison pills are vulnerable to challenges based on preemption by the Williams Act. Such challenges, we show, could well have a major impact on the corporate law landscape.

The Williams Act established a federal regime regulating unsolicited tender offers, but states subsequently developed a body of state antitakeover laws that impose additional impediments to such offers. In a series of well-known cases during the 1970s and 1980s, the federal courts, including the Supreme Court, held some of these state antitakeover laws preempted by the Williams Act. To date, however, federal courts and commentators …

Changes In Ownership: Beyond The Berle-Means Paradigm, Ira M. Millstein Center For Global Markets And Corporate Ownership

Ira M. Millstein Center for Global Markets and Corporate Ownership

The “Changes in Ownership: Beyond the Berle-Means Paradigm” Symposium, held April 2013, explored whether, and how, the recent explosion of new ownership models alters the paradigm of dispersed ownership developed by Adolf Berle and Gardiner Means three generations ago. That model indicated that public corporations were owned by dispersed shareholders whose separate ownership positions were too small to justify extensive monitoring of managerial performance. This view of the distribution of ownership in U.S. corporations has been foundational for both much academic work and for much of corporate law and governance, which have been aimed at addressing the monitoring shortfall.

The …

State Liability For Regulatory Change: How International Investment Rules Are Overriding Domestic Law, Lise Johnson, Oleksandr Volkov

Columbia Center on Sustainable Investment Staff Publications

With governments around the world pushing efforts to negotiate and approve mega-investment treaties, it is important to be clear on just what these investment treaties do and do not mean. One issue that is increasingly apparent is that investment treaties are not merely tools to provide protections against abusive regimes and egregious conduct, but are mechanisms through which a small and typically powerful set of private actors can change the substantive content of the law outside the normal domestic legislative and judicial frameworks.

Square Pegs And Round Holes: Moving Beyond Bivens In National Security Cases, Alexander Steven Zbrozek

National Security Law Program

Since its inception, the Supreme Court has largely orphaned the Bivens doctrine, a child of its own jurisprudence. In doing so, the Court has repeatedly invoked dicta from the Bivens case warning that unspecified “special factors counseling hesitation” could preclude judicial recognition of future constitutional remedies. Picking up on this thread, lower courts have notably limited the justiciability of Bivens claims in cases challenging counterterrorism-related government conduct. This so-called “national security exception” to the Bivens doctrine has created a substantial hurdle to individual justice and government transparency.

This Note therefore proposes the creation of an Article I administrative court with …

An Examination Of The Challenges, Successes And Setbacks For Clinical Legal Education In Eastern Europe, Dubravka Aksamovic, Philip Genty

Faculty Scholarship

The authors first met in 2000, and have collaborated in conferences, workshops, and other projects since then. We also represent two sides of an international exchange that has frequently occurred in the past 15 years: a European law teacher who attends training sessions, networks with colleagues from other European universities, learns about American models of clinical education, and possibly receives some outside funding; and an American law teacher who is graciously hosted by Europeans, promotes American models of clinical education, and, one hopes, observes, listens and learns about the European system. We are also experienced teachers within our own universities …

Access To Justice: Ensuring Meaningful Access To Counsel In Civil Cases, Human Rights Clinic

Human Rights Institute

In order to meet its human rights obligations, the federal government must work toward the establishment of the right to counsel for indigent litigants in civil cases, especially where basic human needs are at stake. Direct steps the federal government should take include: supporting research into the impact of providing counsel in civil cases; fully funding the Legal Services Corporation and lifting restrictions that prevent legal services lawyers from providing necessary services; intensifying the Acc,ess to Justice Initiative's activities with respect to civil legal services and providing it with the necessary leadership and resources; and filing supportive amicus briefs when …

Illusion Of Justice: Human Rights Abuses In Us Terrorism Prosecutions, Human Rights Watch, Human Rights Institute

Human Rights Institute

Terrorism entails horrifying acts, often resulting in terrible losses of human life. Governments have a duty under international human rights law to take reasonable measures to protect people within their jurisdictions from acts of violence. When crimes are committed, governments also have a duty to carry out impartial investigations, to identify those responsible, and to prosecute suspects before independent courts. These obligations require ensuring fairness and due process in investigations and prosecutions, as well as humane treatment of those in custody.

False Claims Act: An Inspector General's Best Friend, John Carroll

Center for the Advancement of Public Integrity (Inactive)

Federal and State False Claims Acts facilitate recovery against contractors who bill the government fraudulently. FCAs have many components which make them potent anti-corruption weapons.

Using Gps Devices In Inspector General Investigations After Cunningham V. New York State Department Of Labor, Wesley Cheng

Center for the Advancement of Public Integrity (Inactive)

When the New York State Office of the Inspector General (“NY-OIG”) suspected that a New York State employee named Michael Cunningham was submitting false time reports, its investigators turned to electronic surveillance to assist in their collection of evidence. Without obtaining a judicial warrant, NY-OIG investigators covertly attached a global positioning system (GPS) device to Cunningham’s car and collected data on Cunningham’s vehicular movements twenty-four hours a day for a month, including during his vacation. Ultimately, the GPS data was used in a disciplinary hearing leading to Cunningham’s termination.

Profile In Public Integrity: Joseph Ferguson, Center For The Advancement Of Public Integrity

Center for the Advancement of Public Integrity (Inactive)

Joseph Ferguson is in his second term as Chicago’s Inspector General. Ferguson came to the Inspector General’s Office following 15 years with the United States Attorney’s Office (USAO) for the Northern District of Illinois. From 1994 through 1999 he represented the United States in cases before the U.S. District Court for the Northern District of Illinois and U.S. Seventh Circuit Court of Appeals involving employment discrimination (Title VII), civil rights, environmental law, and government program fraud. From 2000 to 2009, Ferguson worked in the Criminal Division of the USAO, prosecuting public corruption, mail/wire fraud, tax, healthcare and government program frauds, …

Profile In Public Integrity: Adam Graycar, Center For The Advancement Of Public Integrity

Center for the Advancement of Public Integrity (Inactive)

Adam Graycar is Professor of Public Policy at the Australian National University (ANU), where he is also Director of the Transnational Research Institute on Corruption. He joined ANU in 2010 when he became the Foundation Dean of the Australian National Institute for Public Policy for two years. He recently stepped down after four years as Director of the Research School of Social Sciences at ANU.

Graycar acquired extensive policy experience over 22 years in the senior posts he held in Australian government at state and federal levels. He has had long experience in both academia and in government. His most …

Profile In Public Integrity: Frank Vogl, Center For The Advancement Of Public Integrity

Center for the Advancement of Public Integrity (Inactive)

Frank Vogl is Co-Founder of The Partnership for Transparency Fund and Co-Founder of Transparency International, former Vice Chairman of the Board of Directors and currently a member of the Transparency International Advisory Council and the Advisor to Transparency International’s global Managing Director. He is also the President of Vogl Communications and former World Bank Group Director of Information and Public Affairs and acting head of External Relations. Previously, Vogl was an international economics correspondent for Reuters news service and The Times (London).

Profile In Public Integrity: Marianne Camerer, Center For The Advancement Of Public Integrity

Center for the Advancement of Public Integrity (Inactive)

Marianne Camerer co-founded Global Integrity, a leading international anti-corruption non-profit. She is the Programme Director of Building Bridges, a new policy-focused research and outreach programme at the Graduate School of Development Policy and Practice at the University of Cape Town, South Africa. She previously headed anti-corruption research at the Institute for Security Studies, was a founding director of the Open Democracy Advice Center and lectured in applied ethics at the University of Stellenbosch. Marianne holds a doctorate in Political Studies from the University of Witwatersrand, masters’ degrees in public policy and political philosophy from Oxford and the University of Stellenbosch, …

Profile In Public Integrity: Mark Greenblatt, Center For The Advancement Of Public Integrity

Center for the Advancement of Public Integrity (Inactive)

Mark Greenblatt is an attorney in the Greater Washington area specializing in criminal and ethics investigations. Over the course of his career, Mark worked in several roles to lead investigations into misconduct by senior officials in U.S. and foreign governments, most recently as Director of Special Investigations at the U.S. Department of Commerce Office of Inspector General. He also served as an Investigative Counsel for the special investigations unit of the Department of Justice Office of Inspector General. He also led the U.S. Senate investigation into the United Nations’ Oil-for-Food Program. Mark is a graduate of Duke University and Columbia …

China: The Quest For Procedural Justice, Stanley B. Lubman

Hong Yen Chang Center for Chinese Legal Studies

This essay is contributed in recognition of Don Wallace’s dedication to furthering procedural justice in the U.S. and abroad. Don’s interests are wider than anyone else’s I can think of. Even though China and Chinese law are not represented in his published scholarship, in the course of our long friendship he has expressed thoughtful interest in many ways, including his constructive participation in the first delegation of the American Bar Association to visit China, which I escorted in 1978, and his later visits to China. Under Don’s leadership as Director of the International Law Institute at the Georgetown Law School, …

From Sovereignty And Process To Administration And Politics: The Afterlife Of American Federalism, Jessica Bulman-Pozen

Faculty Scholarship

Announcing the death of dual federalism, Edward Corwin asked whether the states could be “saved as the vital cells that they have been heretofore of democratic sentiment, impulse, and action.” The federalism literature has largely answered in the affirmative. Unwilling to abandon dual federalism’s commitment to state autonomy and distinctive interests, scholars have proposed new channels for protecting these forms of state-federal separation. Yet today state and federal governance are more integrated than separate. States act as co-administrators and co-legislatures in federal statutory schemes; they carry out federal law alongside the executive branch and draft the law together with Congress. …

Good Will Hunting: How The Supreme Court's Hunter Doctrine Can Still Shield Minorities From Political-Process Discrimination, Kerrel Murray

Faculty Scholarship

When the Sixth Circuit struck down Michigan’s anti-affirmative-action Proposal 2 in 2012, its reasoning may have left some observers hunting for their Fourteenth Amendment treatises. Rather than applying conventional equal protection doctrine, the court rested its decision on an obscure branch of equal protection jurisprudence known as the Hunter doctrine, which originated over forty years ago. The doctrine, only used twice by the Supreme Court to invalidate a law since its creation, purports to protect the political-process rights of minorities by letting courts invalidate laws that work nonneutrally to make it more difficult for them to “achieve legislation that is …

Fee-Shifting Bylaw And Charter Provisions: Can They Apply In Federal Court? – The Case For Preemption, John C. Coffee Jr.

Faculty Scholarship

In the first months after a decision of the Delaware Supreme Court upholding a fee-shifting bylaw under which the unsuccessful plaintiff shareholder was required to reimburse all defendants for their legal and other expenses in the litigation, some 24 public companies adopted a similar provision – either by means of a board-adopted bylaw or by placing such a provision in their certificate of incorporation (in the case of companies undergoing an IPO). In effect, private ordering is introducing a one-sided version of the “loser pays” rules. Indeed, as drafted, these provisions typically require a plaintiff who is not completely successful …

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…. …

How To Improve The Financial Architecture And Its Resilience, Dirk Helbing, Eve Mitleton-Kelly, Jean-Philippe Bouchaud, Fabio Caccioli, J. Doyne Farmer, Steve Keen, Katharina Pistor, Dennis J. Snower, Olsen Richard, Angelo Ranaldo, Norbert Häring, Edward Fullbrook

Faculty Scholarship

This financial resilience survey was circulated on behalf of a working group of the Complexity Council of the World Economic Forum comprised of Prof. Eve Mitleton-Kelly of London School of Economics and Prof. Dirk Helbing at ETH Zurich's Risk Center. It was sent to a few dozens of financial experts with the aim to create an inventory of ideas of how the financial system might be improved and made more resilient. Unconventional ideas were also welcome.

Letter From The U.S.: Exclusive Rights, Exceptions, And Uncertain Compliance With International Norms – Part Ii (Fair Use), Jane C. Ginsburg

Faculty Scholarship

This survey of recent U.S. fair use decisions examines the domestic evolution of the doctrine, particularly in light of the significant expansion of noninfringing “transformative” uses. The article also considers the U.S.’ compliance with its international obligations under the Berne Convention and the TRIPs Accord, and inquires whether the substantial enlargement of the application of the U.S. fair use exception exceeds the leeway that the Berne Convention, art. 9(2), WCT art. 10, and TRIPs art. 13 grant to member states to provide for exceptions and limitations to copyright.

Do Defaults On Payday Loans Matter?, Ronald J. Mann

Faculty Scholarship

This essay examines the effect on a borrower’s financial health of failure to repay a payday loan. Recent regulatory initiatives suggest an inclination to add an “ability to pay” requirement to payday-loan underwriting that would be fundamentally inconsistent with the nature of the product. Because the premise of that regulation would be that borrowers suffer harm when they fail to repay such a loan, it is timely to examine the after-effects of such a default empirically. This essay examines that question using a dataset that combines payday borrowing histories with credit bureau information.

The essay uses a difference-in-difference approach, comparing …