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The Institutional Mismatch Of State Civil Courts, Colleen F. Shanahan, Jessica K. Steinberg, Alyx Mark, Anna E. Carpenter Jan 2022

The Institutional Mismatch Of State Civil Courts, Colleen F. Shanahan, Jessica K. Steinberg, Alyx Mark, Anna E. Carpenter

Faculty Scholarship

State civil courts are central institutions in American democracy. Though designed for dispute resolution, these courts function as emergency rooms for social needs in the face of the failure of the legislative and executive branches to disrupt or mitigate inequality. We reconsider national case data to analyze the presence of social needs in state civil cases. We then use original data from courtroom observation and interviews to theorize how state civil courts grapple with the mismatch between the social needs people bring to these courts and their institutional design. This institutional mismatch leads to two roles of state civil courts ...


A Tale Of Two Civil Procedures, Pamela K. Bookman, Colleen F. Shanahan Jan 2022

A Tale Of Two Civil Procedures, Pamela K. Bookman, Colleen F. Shanahan

Faculty Scholarship

In the United States, there are two kinds of courts: federal and state. Civil procedure classes and scholarship largely focus on federal courts but refer to and make certain assumptions about state courts. While this dichotomy makes sense when discussing some issues, for many aspects of procedure this breakdown can be misleading. Two different categories of courts are just as salient for understanding American civil justice: those that routinely include lawyers and those where lawyers are fundamentally absent.

This Essay urges civil procedure teachers and scholars to think about our courts as “lawyered” and “lawyerless.” Lawyered courts include federal courts ...


The Field Of State Civil Courts, Anna E. Carpenter, Alyx Mark, Colleen F. Shanahan, Jessica K. Steinberg Jan 2022

The Field Of State Civil Courts, Anna E. Carpenter, Alyx Mark, Colleen F. Shanahan, Jessica K. Steinberg

Faculty Scholarship

This symposium Issue of the Columbia Law Review marks a moment of convergence and opportunity for an emerging field of legal scholarship focused on America’s state civil trial courts. Historically, legal scholarship has treated state civil courts as, at best, a mere footnote in conversations about civil law and procedure, federalism, and judicial behavior. But the status quo is shifting. As this Issue demonstrates, legal scholars are examining our most common civil courts as sites for understanding law, legal institutions, and how people experience civil justice. This engagement is essential for inquiries into how courts shape and respond to ...


The Institutional Mismatch Of State Civil Courts, Colleen F. Shanahan, Jessica K. Steinberg, Alyx Mark, Anna E. Carpenter Jan 2022

The Institutional Mismatch Of State Civil Courts, Colleen F. Shanahan, Jessica K. Steinberg, Alyx Mark, Anna E. Carpenter

Faculty Scholarship

State civil courts are central institutions in American democracy. Though designed for dispute resolution, these courts function as emergency rooms for social needs in the face of the failure of the legislative and executive branches to disrupt or mitigate inequality. We reconsider national case data to analyze the presence of social needs in state civil cases. We then use original data from courtroom observation and interviews to theorize how state civil courts grapple with the mismatch between the social needs people bring to these courts and their institutional design. This institutional mismatch leads to two roles of state civil courts ...


The Puzzles And Possibilities Of Article V, David E. Pozen, Thomas P. Schmidt Jan 2021

The Puzzles And Possibilities Of Article V, David E. Pozen, Thomas P. Schmidt

Faculty Scholarship

Legal scholars describe Article V of the U.S. Constitution, which sets forth rules for amending the document, as an uncommonly stringent and specific constitutional provision. A unanimous Supreme Court has said that a “mere reading demonstrates” that “Article V is clear in statement and in meaning, contains no ambiguity, and calls for no resort to rules of construction.” Although it is familiar that a small set of amendments, most notably the Reconstruction Amendments, elicited credible challenges to their validity, these episodes are seen as anomalous and unrepresentative. Americans are accustomed to disagreeing over the meaning of the constitutional text ...


The Three Permissions: Presidential Removal And The Statutory Limits Of Agency Indepence, Jane Manners, Lev Menand Jan 2021

The Three Permissions: Presidential Removal And The Statutory Limits Of Agency Indepence, Jane Manners, Lev Menand

Faculty Scholarship

Seven words stand between the President and the heads of over a dozen “independent agencies”: inefficiency, neglect of duty, and malfea­sance in office (INM). The President can remove the heads of these agencies for INM and only INM. But neither Congress nor the courts have defined INM and hence the extent of agency independence. Stepping into this void, some proponents of presidential power argue that INM allows the President to dismiss officials who do not follow presidential directives. Others contend that INM is unconstitutional because it prevents Presidents from fulfilling their duty to take care that the laws are ...


Obsolescence: The Intractable Production Problem In Contract Law, Alan Schwartz, Robert E. Scott Jan 2021

Obsolescence: The Intractable Production Problem In Contract Law, Alan Schwartz, Robert E. Scott

Faculty Scholarship

Contract law has long suffered from an institutional problem: Which legal institution can best create an efficient law for commercial contracts that can overcome "obsolescence” – the persistence of rules that only solve yesterday’s contracting problems? Until the early 20th century, contract law was largely created by common law courts. The law's default rules were efficient when created and courts updated them as commerce changed. But there were few rules and the common law process is slow. In response, the 20th century saw public and private lawmaking bodies enact commercial statutes in discrete legal areas such as secured credit ...


Professor Justice Ginsburg: Justice Ginsburg's Love Of Procedure And Jurisdiction, Zachary D. Tripp, Gillian E. Metzger Jan 2021

Professor Justice Ginsburg: Justice Ginsburg's Love Of Procedure And Jurisdiction, Zachary D. Tripp, Gillian E. Metzger

Faculty Scholarship

As two of Justice Ginsburg’s former clerks, we are keenly aware of the popular image of the Justice as the “Notorious RBG”: the champion of women’s rights and the forceful dissenter, strongly disputing the Roberts Court’s conservative turn and articulating the case for the liberal New Deal constitutional vision, with its commitment to protecting individual rights and broad view of national power.

This she did, powerfully and eloquently. But to understand Justice Ginsburg – the person, the Justice, and her jurisprudence – it is also critical to account for her role as the Supreme Court’s leading civil procedure ...


Corporate Control, Dual Class, And The Limits Of Judicial Review, Zohar Goshen, Assaf Hamdani Jan 2020

Corporate Control, Dual Class, And The Limits Of Judicial Review, Zohar Goshen, Assaf Hamdani

Faculty Scholarship

Companies with a dual-class structure have increasingly been involved in high-profile battles over the reallocation of control rights. Google, for instance, sought to entrench its founders’ control by recapital­izing from a dual-class into a triple-class structure. The CBS board, in contrast, attempted to dilute its controlling shareholder by distributing a voting stock dividend that would empower minority shareholders to block a merger it perceived to be harmful. These cases raise a fundamental question at the heart of corporate law: What is the proper judicial response to self-dealing claims regarding reallocations of corporate control rights?

This Article shows that the ...


Minds, Machines, And The Law: The Case Of Volition In Copyright Law, Mala Chatterjee, Jeanne C. Fromer Jan 2019

Minds, Machines, And The Law: The Case Of Volition In Copyright Law, Mala Chatterjee, Jeanne C. Fromer

Faculty Scholarship

The increasing prevalence of ever-sophisticated technology permits machines to stand in for or augment humans in a growing number of contexts. The questions of whether, when, and how the so-called actions of machines can and should result in legal liability thus will also become more practically pressing. One important set of questions that the law will inevitably need to confront is whether machines can have mental states, or — at least — something sufficiently like mental states for the purposes of the law. This is because a number of areas of law have explicit or implicit mental state requirements for the incurrence ...


The Separation Of Platforms And Commerce, Lina M. Khan Jan 2019

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 ...


Will Artificial Intelligence Eat The Law? The Rise Of Hybrid Social-Ordering Systems, Tim Wu Jan 2019

Will Artificial Intelligence Eat The Law? The Rise Of Hybrid Social-Ordering Systems, Tim Wu

Faculty Scholarship

Software has partially or fully displaced many former human activities, such as catching speeders or flying airplanes, and proven itself able to surpass humans in certain contests, like Chess and Jeopardy. What are the prospects for the displacement of human courts as the centerpiece of legal decision-making? Based on the case study of hate speech control on major tech platforms, particularly on Twitter and Facebook, this Essay suggests displacement of human courts remains a distant prospect, but suggests that hybrid machine – human systems are the predictable future of legal adjudication, and that there lies some hope in that combination, if ...


Law's Halo And The Moral Machine, Bert I. Huang Jan 2019

Law's Halo And The Moral Machine, Bert I. Huang

Faculty Scholarship

How will we assess the morality of decisions made by artificial intelli­gence – and will our judgments be swayed by what the law says? Focusing on a moral dilemma in which a driverless car chooses to sacrifice its passenger to save more people, this study offers evidence that our moral intuitions can be influenced by the presence of the law.


The Lopsided Harms Of Reproductive Negligence, Carol Sanger Jan 2018

The Lopsided Harms Of Reproductive Negligence, Carol Sanger

Faculty Scholarship

The concept of reproductive negligence is probably not unfamiliar to men and women of child-bearing or child-begetting age. Many a restless hour has been spent worrying about the consequences of a skipped pill, an abandoned condom, or some other form of contraceptive carelessness. The general rule in such circumstances is that the injured party has no recourse in tort against a sexual partner whose negligence resulted, say, in a pregnancy. (Interestingly, liability may arise as the result of the negligent transmission of herpes.) To be sure, not all reproductive misconduct is negligent; some is intentional, as when a sexual partner ...


Robert Ferguson: A Man For All Seasons, Brett Dignam Jan 2018

Robert Ferguson: A Man For All Seasons, Brett Dignam

Faculty Scholarship

Professor Robert Ferguson enriched all of our lives. The man lived by and luxuriated in words. They are important to all of us, but they had a particularly magical significance to Robert. He chose them carefully, crafted their construction, and gloried in their rhythm. He encouraged all of us – his colleagues, students, friends, and (most recently) correspondents from prison – to articulate our thoughts. He listened to and scrutinized the words of others with impeccable care.


Beyond The Bosses' Constitution: The First Amendment And Class Entrenchment, Jedediah S. Purdy Jan 2018

Beyond The Bosses' Constitution: The First Amendment And Class Entrenchment, Jedediah S. Purdy

Faculty Scholarship

The Supreme Court’s “weaponized” First Amendment has been its strongest antiregulatory tool in recent decades, slashing campaign-finance regulation, public-sector union financing, and pharmaceutical regulation, and threatening a broader remit. Along with others, I have previously criticized these developments as a “new Lochnerism.” In this Essay, part of a Columbia Law Review Symposium, I press beyond these criticisms to diagnose the ideological outlook of these opinions and to propose an alternative. The leading decisions of the antiregulatory First Amendment often associate free speech with a vision of market efficiency; but, I argue, closer to their heart is antistatist fear of ...


The Search For An Egalitarian First Amendment, Jeremy K. Kessler, David E. Pozen Jan 2018

The Search For An Egalitarian First Amendment, Jeremy K. Kessler, David E. Pozen

Faculty Scholarship

Over the past decade, the Roberts Court has handed down a series of rulings that demonstrate the degree to which the First Amendment can be used to thwart economic and social welfare regulation – generating widespread accusations that the Court has created a "new Lochner." This introduction to the Columbia Law Review's Symposium on Free Expression in an Age of Inequality takes up three questions raised by these developments: Why has First Amendment law become such a prominent site for struggles over socioeconomic inequality? Does the First Amendment tradition contain egalitarian elements that could be recovered? And what might a ...


Asymmetric Constitutional Hardball, Joseph Fishkin, David E. Pozen Jan 2018

Asymmetric Constitutional Hardball, Joseph Fishkin, David E. Pozen

Faculty Scholarship

Many have argued that the United States' two major political parties have experienced "asymmetric polarization" in recent decades: The Republican Party has moved significantly further to the right than the Democratic Party has moved to the left. The practice of constitutional hardball, this Essay argues, has followed a similar – and causally related – trajectory. Since at least the mid-1990s, Republican officeholders have been more likely than their Democratic counterparts to push the constitutional envelope, straining unwritten norms of governance or disrupting established constitutional understandings. Both sides have done these things. But contrary to the apparent assumption of some legal scholars, they ...


Tribute To Arthur Murphy, Peter L. Strauss Jan 2017

Tribute To Arthur Murphy, Peter L. Strauss

Faculty Scholarship

Columbia Law School’s postwar class of 1948, perhaps more than any other, has brought remarkable distinction to both the school and the law. Marvin Frankel, Jack Greenberg, Jack Kernochan, Arthur Murphy, and Jack Weinberg have all both taught here and acted with enormous distinction an d success in the outside world of law – a grouping not so often to be found in the legal academy these days. Arthur Murphy, whom we celebrate here, moved between these worlds with ease: first as an associate at Columbia in 1949; then years in private practice and with the Department of Justice; then ...


Al Hill: A Grandmaster Has Passed, Henry Paul Monaghan Jan 2017

Al Hill: A Grandmaster Has Passed, Henry Paul Monaghan

Faculty Scholarship

Al Hill died on December 5, 2015 at the age of 98, outlasting most of his contemporaries. Al had taken senior status when I came to Columbia Law School, and I succeeded him in the course on federal courts. The little I saw of Al left me with the firm impression of a warm, gentle, affable, caring human being. I did, however, know Al’s work quite thoroughly. And while a memorial is no occasion for an extended review of Al’s long and distinguished academic career, I would like to draw attention to a particularly shining period: Al’s ...


Jack Greenberg: Living Greatly In The Law, John C. Coffee Jr. Jan 2017

Jack Greenberg: Living Greatly In The Law, John C. Coffee Jr.

Faculty Scholarship

In 1886, Oliver Wendell Holmes, Jr., then a Professor at Harvard Law School, gave a talk to the students of Harvard College, which included a much-quoted line: “I say – and I say no longer with any doubt – that a man may live greatly in the law…. [H]e may wreak himself upon life, may drink the bitter cup of heroism, may wear his heart out after the unattainable.”

Holmes set a high standard for greatness. It was not enough for him that a lawyer succeed in “the greedy watch for clients and practice of shopkeepers’ arts,” but rather he had ...


Tribute To Alfred Hill, Harold Edgar Jan 2017

Tribute To Alfred Hill, Harold Edgar

Faculty Scholarship

Alfred Hill, a great legal scholar and one of Columbia’s treasures for nearly 50 years, died in 2015 at the age of 98. The Columbia Law Review honored him on his retirement from active teaching in 1991, but Al continued to write important work even into the twenty-first century.


Causing Copyright, Shyamkrishna Balganesh Jan 2017

Causing Copyright, Shyamkrishna Balganesh

Faculty Scholarship

Copyright protection attaches to an original work of expression the moment it is created and fixed in a tangible medium. Yet modern copyright law contains no viable mechanism by which to examine whether someone is causally responsible for the creation and fixation of the work. Whenever the issue of causation arises, copyright law relies on its preexisting doctrinal devices to resolve the issue, in the process cloaking its intuitions about causation in altogether extraneous considerations. This Article argues that copyright law embodies an unstated yet distinct theory of authorial causation, which connects the element of human agency to a work ...


Principal Costs: A New Theory For Corporate Law And Governance, Zohar Goshen, Richard Squire Jan 2017

Principal Costs: A New Theory For Corporate Law And Governance, Zohar Goshen, Richard Squire

Faculty Scholarship

The problem of managerial agency costs dominates debates in corporate law. Many leading scholars advocate reforms that would reduce agency costs by forcing firms to allocate more control to shareholders. Such proposals disregard the costs that shareholders avoid by delegating control to managers and voluntarily restricting their own control rights. This Essay introduces principal-cost theory, which posits that each firm’s optimal governance structure minimizes the sum of principal costs, produced when investors exercise control, and agent costs, produced when managers exercise control. Both principal costs and agent costs can arise from honest mistakes (which generate competence costs) and from ...


Perpetual Evolution: A School's-Focused Public Law Litigation Model For Our Day, James S. Liebman Jan 2017

Perpetual Evolution: A School's-Focused Public Law Litigation Model For Our Day, James S. Liebman

Faculty Scholarship

In celebrating the monumental accomplishments of the new form of public law litigation that Constance Baker Motley and her colleagues pioneered, this Essay reinterprets their paradigm-shifting body of work in a manner that obliges the current generation of civil rights advocates to change direction. In the hopes of reengaging the affirmative force of constitutional litigation after decades in which it has waned, this Essay argues that the central lesson to be derived from Motley’s generation lies not in the mode of public law litigation it pioneered but in the design of that litigation in the image of the dominant ...


Tribute To Arthur Murphy, Michael I. Sovern Jan 2017

Tribute To Arthur Murphy, Michael I. Sovern

Faculty Scholarship

Students remember Arthur Murphy as a warm, caring teacher with a great sense of humor, a man who helped them learn and grow. Our colleagues admired and respected his scholarship and his commitment to our school. While I shared all of that, to me, most importantly, Arthur was an empathetic friend for more than half a century. And this despite the fact that he had two strikes against him – he was a Harvard graduate and a Boston Red Sox fan.

Arthur was a member of what Tom Brokaw called “The Greatest Generation.” After fighting in World War II, he enrolled ...


The Power To Wage War Successfully, Matthew C. Waxman Jan 2017

The Power To Wage War Successfully, Matthew C. Waxman

Faculty Scholarship

A century ago and in the midst of American involvement in World War I, future Chief Justice Charles Evans Hughes delivered one of the most influential lectures on the Constitution in wartime. In it he uttered his famous axiom that “the power to wage war is the power to wage war successfully.” That statement continues to echo in modern jurisprudence, though the background and details of the lecture have not previously been explored in detail. Drawing on Hughes’s own research notes, this Article examines his 1917 formulation and shows how Hughes presciently applied it to the most pressing war ...


Contracting Out Of The Fiduciary Duty Of Loyalty: An Empirical Analysis Of Corporate Opportunity Waivers, Gabriel Rauterberg, Eric L. Talley Jan 2017

Contracting Out Of The Fiduciary Duty Of Loyalty: An Empirical Analysis Of Corporate Opportunity Waivers, Gabriel Rauterberg, Eric L. Talley

Faculty Scholarship

For centuries, the duty of loyalty has been the hallowed centerpiece of fiduciary obligation, widely considered one of the few “mandatory” rules of corporate law. That view, however, is no longer true. Beginning in 2000, Delaware dramatically departed from tradition by granting incorporated entities a statutory right to waive a crucial part of the duty of loyalty: the corporate opportunities doctrine. Other states have since followed Delaware’s lead, similarly permitting firms to execute “corporate opportunity waivers.” Surprisingly, more than fifteen years into this reform experiment, no study has attempted to either systematically measure the corporate response to these reforms ...


Understanding Recent Spikes And Longer Trends In American Murders, Jeffery Fagan, Daniel Richman Jan 2017

Understanding Recent Spikes And Longer Trends In American Murders, Jeffery Fagan, Daniel Richman

Faculty Scholarship

On September 7, 2016, four of the nation’s newspapers of record weighed in on the connected crises in crime and policing. The New York Times revealed the tensions between the Mayor’s office in Chicago and several community and professional groups over a plan to overhaul Chicago’s police disciplinary board – a plan developed in the wake of the shooting of an unarmed teenager, Laquan McDonald, and the release of a video of that killing. The Wall Street Journal related a vigorous defense of New York City’s “broken windows” policing strategy – a strategy that has been a recurring ...


Equality Law Pluralism, Olatunde C.A. Johnson Jan 2017

Equality Law Pluralism, Olatunde C.A. Johnson

Faculty Scholarship

This contribution to the Constance Baker Motley Symposium examines the future of civil rights reform at a time in which longstanding limitations of the antidiscrimination law framework, as well as newer pressures such as the rise of economic populism, are placing stress on the traditional antidiscrimination project. This Essay explores the openings that nevertheless remain in public law for confronting persistent forms of exclusion and makes the case for greater pluralism in equality law frameworks. In particular, this Essay examines innovations that widen the range of regulatory levers for promoting inclusion, such as competitive grants, tax incentives, contests for labor ...