Law Commons^™

Three Legal Visions Of A ‘Green New Deal’, Michael B. Gerrard, Edward Mctiernan

Faculty Scholarship

Rep. Alexandria Ocasio-Cortez (D-N.Y.), who has rocketed to such fame that she is now widely known simply as AOC, and Sen. Edward Markey (D-Mass.), co-father of Waxman-Markey, the cap-and- trade bill that narrowly passed the House in 2009 but died in the Senate, have introduced identical resolutions to create a “Green New Deal.” H. Res. 109, S. Res. 59.

Choice Theory: A Restatement, Michael A. Heller, Hanoch Dagan

Faculty Scholarship

This chapter restates choice theory, which advances a liberal approach to contract law. First, we refine the concept of autonomy for contract. Then we address range, limit, and floor, three principles that together justify contract law in a liberal society. The first concerns the state’s obligation to be proactive in facilitating the availability of a multiplicity of contract types. The second refers to the respect contract law owes to the autonomy of a party’s future self, that is, to the ability to re-write the story of one’s life. The final principle concerns relational justice, the baseline for any legitimate use …

Seeing Transparency More Clearly, David E. Pozen

Faculty Scholarship

In recent years, transparency has been proposed as the solution to, and the cause of, a remarkable range of public problems. The proliferation of seemingly contradictory claims about transparency becomes less puzzling, this essay argues, when one appreciates that transparency is not, in itself, a coherent normative ideal. Nor does it have a straightforward instrumental relationship to any primary goals of governance. To gain greater purchase on how transparency policies operate, scholars must therefore move beyond abstract assumptions and drill down into the specific legal, institutional, historical, political, and cultural contexts in which these policies are crafted and implemented. The …

Nonvoting Shares And Efficient Corporate Governance, Dorothy S. Lund

Faculty Scholarship

A growing number of technology companies, including Google, Zillow, and Snap, have issued stock that does not allow investors to vote on corporate decisions. But there is fundamental disagreement among scholars and investors about whether nonvoting stock is beneficial or harmful. Critics argue that nonvoting shares perpetually insulate corporate insiders from influence and oversight, and therefore increase agency costs. By contrast, proponents contend that nonvoting shares may provide benefits that exceed these agency costs, such as enabling corporate insiders to pursue their long-term vision for the company without interference from outside shareholders.

This Article offers a novel perspective on this …

On Dancy’S Account Of Practical Reasoning, Joseph Raz

Faculty Scholarship

Dancy's main thesis is that the conclusion of practical reasoning is an action, and indeed that makes the reasoning practical. I trace his argument, suggest improvements to its superficial deficiencies, and conclude that it fails because Dancy misunderstands the nature of reasoning.

Introduction To The Symposium On Cyber Attribution, Monica Hakimi

Faculty Scholarship

This symposium explores some of the legal issues surrounding the attribution of cyber conduct to states. Relative to states’ other activities, cyber conduct poses particularly thorny attribution challenges. States that engage in such conduct often use technology to obscure their identities or the full effects of their operations. The attribution challenges in turn raise difficult questions about how victim states should be allowed to respond — whether in kind, with other retorsions or countermeasures, with kinetic force, or by doing nothing at all. For example, how confident must a victim state be that it has correctly identified the source of …

This Is The Moment Of Truth, Ray León, Roger Lin, Camille Pannu, Irene Vasquez

Faculty Scholarship

While everyone is taking their seats, I wanted to quickly just thank the prior panelists today and bring it full circle, back to Mustafa’s opening keynote, where he asked, “Who is fighting these fights? Who is doing this work in fighting for justice?” He pointed out that many of the people fighting these fights, many of the advocates, are people who look like you and are also the same age as you. That is why we have this panel. What can you, as students, do to get involved in the environmental justice or social justice movements?

My name is Roger …

"Social Engineering": Notes On The Law And Political Economy Of Integration, Olatunde C.A. Johnson

Faculty Scholarship

On the occasion of the Fiftieth Anniversary of the Fair Housing Act, progress towards the Act’s goals of non-discrimination and integration is uneven. On both fronts, the last fifty years have seen some progress, but by several accounts more progress has been made on the anti-discrimination front than in advancing integration. The last fifty years have also given us a wealth of knowledge about the types of policy and planning devices — such as mobility voucher programs and inclusionary zoning — that might help achieve the goal of integration and ample data about the harms of segregation versus integration’s benefits. …

Building Bridges: Examining Race And Privilege In Community Economic Development: Introductory Overview, Priya Baskaran, Renee Hatcher, Lynnise E. Pantin

Faculty Scholarship

The country has been in economic recovery since the Great Recession in 2007. Home prices have since stabilized after the mortgage and foreclosure crisis that followed the Recession. In late 2017, the federal government passed the Tax Cuts and Jobs Act, leading to a surge in corporate earnings. As of the time of this writing, major stock indicators are at all-time highs, and interest rates are low. But corporate indicators and interest rates do not paint the entire picture. Most of the economic recovery is in affluent, predominately white parts of the country, while distressed areas inhabited by people of …

Regulating In The Face Of A Changing World: Legal Regulation Of Climate Change, Michael B. Gerrard

Faculty Scholarship

Everyone knows that the temperatures have been going up. While tern, peratures bounce around from year to year, when looking at five,year averages, the trend is unmistakable. A well,known adverse effect of these changes is that the Arctic is warming; the extent of Arctic sea ice declin, ing had dipped to a record low in 2015. A decreased level of sea ice has led to the rise of sea levels, which have increased at an accelerated pace. There are a number of projections about what the future pace of sea level rise will be, but most scientists believe it most …

Fiduciary Law In Financial Regulation, Howell E. Jackson, Talia B. Gillis

Faculty Scholarship

This chapter explores the application of fiduciary duties to regulated financial firms and financial services. At first blush, the need for such a chapter might strike some as surprising in that fiduciary duties and systems of financial regulation can be conceptualized as governing distinctive and nonoverlapping spheres: fiduciary duties police private activity through open-ended, judicially defined standards imposed on an ex post basis, whereas financial regulations set largely mandatory, ex ante obligations for regulated entities under supervisory systems established in legislation and implemented through expert administrative agencies. Yet, as the chapter documents, fiduciary duties often do overlap with systems of …

Early Childhood Development And The Replication Of Poverty, Clare Huntington

Faculty Scholarship

Antipoverty efforts must begin early because abundant evidence demonstrates that experiences during the first five years of life lay a foundation for future learning and the acquisition of skills. Public investments can help foster early childhood development, but these efforts must begin early and must involve both parents and children. This chapter describes the patterns of convergence and divergence in state approaches to supporting early childhood development. For the prenatal period until age three, the federal government is the primary source of funds, and there is fairly limited variation in how this money is spent across the states. For the …

Manipulating Random Assignment: Evidence From Consumer Bankruptcies In The Nation's Largest Cities, Edward R. Morrison, Belisa Pang, Jonathon Zytnick

Faculty Scholarship

Random case assignment is thought to be an important feature of decision-making in federal courts because it helps guard against favoritism (actual or perceived) toward particular parties or types of cases. In bankruptcy courts, cases are randomly assigned to both judges and trustees. In Chapter 7 cases, for example, the trustee is a quasi-judicial actor, typically a private-sector lawyer, who has been selected to audit the debtor's finances, find and liquidate assets, and police compliance with the law. We study three major bankruptcy jurisdictions (covering Chicago, Los Angeles, and parts of New York) and find that the random-assignment process for …

Board 3.0: An Introduction, Ronald J. Gilson, Jeffrey N. Gordon

Faculty Scholarship

This essay sketches out the case for a new model for public company boards: Board 3.0. The now-dominant public board model is an organizational experiment begun approximately 40 years ago, which replaced a prior organizational form that had fallen short. The current model, the “monitoring board,” is dominated by part-time independent directors who are dependent on company management for information and are otherwise heavily influenced by stock market prices as the measure of managerial performance. We have seen a recurrent pattern of monitoring boards composed of talented people that fail to effectively monitor. Nevertheless, when companies fall short in business …

Open Plurilateral Agreements, International Regulatory Cooperation And The Wto, Charles F. Sabel, Bernard Hoekman

Faculty Scholarship

Sustained high growth in many developing countries (‘the rise of the rest’) combined with long-standing WTO working practices hampers the ability of the WTO to perform its routine functions and paralyzes efforts to adapt to new circumstances. Preferential trade agreements have taken up some of the slack in addressing differences in domestic regulation of product safety, environmental and social conditions, but are exclusionary and inefficient from a global perspective. In this paper, we argue that a new type of agreement based on open plurilateral cooperation offers better prospects for groups of countries to explore and develop their potential common interests …

Trade Openness And Antitrust Law, Anu Bradford, Adam S. Chilton

Faculty Scholarship

Openness to international trade and adoption of antitrust laws can both curb anti-competitive behavior. But scholars have long debated the relationship between the two. Some argue that greater trade openness makes antitrust unnecessary, while others contend that antitrust laws are still needed to realize the benefits of trade liberalization. Data limitations have made this debate largely theoretical to date. We study the relationship between trade and antitrust empirically using new data on antitrust laws and enforcement activities. We find that trade openness and stringency of antitrust laws are positively correlated from 1950 to 2010 overall, but the positive correlation disappears …

Greening The Wto: Ega, Tariff Concessions And Policy Likeness, Petros C. Mavroidis, Damien J. Neven

Faculty Scholarship

This paper considers the APEC and EGA agreements which grant tariff concession through HS classifications beyond the six digit level ("ex outs") in favour of "green" goods and discuss how these initiatives fit into the WTO legal regime. Even if the practical significance of the APEC agreement should not be overestimated as it involves modest tariff concessions over a subset of goods which are not heavily traded, these agreements involve a paradigm shift to the extent that they use tariffs concessions negotiated on a plurilateral basis as a policy instrument to meet public policy concern, instead of making market access …

Why Do Auditors Fail? What Might Work? What Won't?, John C. Coffee Jr.

Faculty Scholarship

Auditing failures and scandals have become commonplace. In response, reformers (including the Kingman Review in the U.K. and a recent report of the U.K.’s Competition and Market Authority) have proposed a variety of remedies, including prophylactic bans on auditors providing consulting services to their clients in the belief that this will minimize the conflicts of interest that produce auditing failures. Although useful, such reforms are already in place to a considerable degree and may have reached the point of diminishing returns. Moreover, this strategy does not address the deeper problem that clients (or their managements) may not want aggressive auditing, …

Domesticating Guidance, Peter L. Strauss

Faculty Scholarship

This Essay, written for an occasion celebrating the scholarship of Professor William Funk of Lewis & Clark Law School, builds in good part on his analyses of soft law documents — statements of general policy and interpretive rules — that today one generally finds discussed under the rubric “guidance.” These are agency texts of less formality than hard law regulations adopted under the procedures of 5 U.S.C. § 553, that inform the public how an agency intends to administer its responsibilities, as a matter of policy or (what may seem just one instance of that) via the interpretation of its …

Richard N. Gardner: Memories, Michael I. Sovern

Faculty Scholarship

Richard Gardner and I were colleagues for almost sixty years. The law faculty elevated us to its tenured ranks at the same meeting in 1959. We helped restore order after Columbia’s 1968 turmoil, he as a member of a disciplinary tribunal, I as chairman of the Executive Committee of the Faculty. We served under eight deans together; he
actually served under a ninth: me.

Symposium: The Future Of The New International Tax Regime, Rosanne Altshuler, Fadi Shaheen, Jeffrey Colon, Michael Graetz, Rebecca Kysar, Susan Morse, Daniel Shaviro, Richard Phillips, Daniel Rolfes, Daniel Rosenbloom, Stephen Shay, Steven Dean

Faculty Scholarship

The symposium was held at Fordham University School of Law on October 26, 2018. It has been edited to remove minor cadences of speech that appear awkward in writing and to provide sources and references to other explanatory materials in respect to certain statements made by the speakers.

Hardball And/As Anti-Hardball, David E. Pozen

Faculty Scholarship

Talk of constitutional hardball is in the air. Ever since Brett Kavanaugh’s confirmation to the Supreme Court, liberal commentators have been pondering tactics such as impeachment, jurisdiction stripping, and especially “packing the court” to a degree that would have been unthinkable a few years ago. Senate Republicans have played vigorous hardball on Supreme Court appointments in the past two Congresses, most obviously by refusing to consider Merrick Garland’s nomination, and there is a strong desire among many Democrats to respond with equal or greater vigor.

Freedom, Choice, And Contracts, Hanoch Dagan, Michael A. Heller

Faculty Scholarship

In “The Choice Theory of Contracts,” we explain contractual freedom and celebrate the plurality of contract types. Here, we reply to critics by refining choice theory and showing how it fits and shapes what we term the “Contract Canon”.

I. Freedom. (1) Charles Fried challenges our account of Kantian autonomy, but his views, we show, largely converge with choice theory. (2) Nathan Oman argues for a commerce-enhancing account of autonomy. We counter that he arbitrarily slights noncommercial spheres central to human interaction. (3) Yitzhak Benbaji suggests that choice theory’s commitment to autonomy is overly perfectionist. Happily, in response to Benbaji, …

A Reconsideration Of Copyright's Term, Kristelia A. Garcia, Justin Mccrary

Faculty Scholarship

For well over a century, legislators, courts, lawyers, and scholars have spent significant time and energy debating the optimal duration of copyright protection. While there is general consensus that copyright’s term is of legal and economic significance, arguments both for and against a lengthy term are often impressionistic. Utilizing music industry sales data not previously available for academic analysis, this Article fills an important evidentiary gap in the literature. Using recorded music as a case study, we determine that most copyrighted music earns the majority of its lifetime revenue in the first five to ten years following its initial release …

The Global Dominance Of European Competition Law Over American Antitrust Law, Anu Bradford, Adam S. Chilton, Katerina Linos, Alex Weaver

Faculty Scholarship

The world’s biggest consumer markets – the European Union and the United States – have adopted different approaches to regulating competition. This has not only put the EU and US at odds in high-profile investigations of anticompetitive conduct, but also made them race to spread their regulatory models. Using a novel dataset of competition statutes, we investigate this race to influence the world’s regulatory landscape and find that the EU’s competition laws have been more widely emulated than the US’s competition laws. We then argue that both “push” and “pull” factors explain the appeal of the EU’s competition regime: the …

Constitutional Moral Hazard And Campus Speech, Jamal Greene

Faculty Scholarship

One underappreciated cost of constitutional rights enforcement is moral hazard. In economics, moral hazard refers to the increased propensity of insured individuals to engage in costly behavior. This Essay concerns what I call “constitutional moral hazard,” defined as the use of constitutional rights (or their conspicuous absence) to shield potentially destructive behavior from moral or pragmatic assessment. What I have in mind here is not simply the risk that people will make poor decisions when they have a right to do so, but that people may, at times, make poor decisions because they have a right. Moral hazard is not …

A Computational Analysis Of Constitutional Polarization, David E. Pozen, Eric L. Talley, Julian Nyarko

Faculty Scholarship

This Article is the first to use computational methods to investigate the ideological and partisan structure of constitutional discourse outside the courts. We apply a range of machine-learning and text-analysis techniques to a newly available data set comprising all remarks made on the U.S. House and Senate floors from 1873 to 2016, as well as a collection of more recent newspaper editorials. Among other findings, we demonstrate (1) that constitutional discourse has grown increasingly polarized over the past four decades; (2) that polarization has grown faster in constitutional discourse than in nonconstitutional discourse; (3) that conservative-leaning speakers have driven this …

Administrative States: Beyond Presidential Administration, Jessica Bulman-Pozen

Faculty Scholarship

Presidential administration is more entrenched and expansive than ever. Most significant policymaking comes from agency action rather than legislation. Courts endorse “the presence of Presidential power” in agency decisionmaking. Scholars give up on external checks and balances and take presidential direction as a starting point. Yet presidential administration is also quite fragile. Even as the Court embraces presidential control, it has been limiting the administrative domain over which the President presides. And when Presidents drive agency action in a polarized age, their policies are not only immediately contested but also readily reversed by their successors.

States complicate each piece of …

The Core Corporate Governance Puzzle: Contextualizing The Link To Performance, Merritt B. Fox, Ronald J. Gilson, Darius Palia

Faculty Scholarship

There is a puzzle at the core of corporate governance theory. Prior scholarship reports a strong relationship between firms best at creating shareholder value and those rated highly by the established corporate governance indices. Little work explores why, however. We hypothesize that the link between governance and performance depends centrally on context. We illustrate the importance of context by exploring circumstances when a firm's governance structure can operate as a signal of the quality of its management. The idea is that better managers are on average more likely to choose a highly rated governance structure than are bad managers because …

The Separation Of Platforms And Commerce, Lina M. Khan

Faculty Scholarship

A handful of digital platforms mediate a growing share of online commerce and communications. By structuring access to markets, these firms function as gatekeepers for billions of dollars in economic activity. One feature dominant digital platforms share is that they have inte­grated across business lines such that they both operate a platform and market their own goods and services on it. This structure places domi­nant platforms in direct competition with some of the businesses that de­pend on them, creating a conflict of interest that platforms can exploit to further entrench their dominance, thwart competition, and stifle innovation.

This Article argues …