Law Commons^™

Epa's Impending Greenhouse Gas Regulations: Digging Through The Morass Of Litigation, Gregory E. Wannier

Sabin Center for Climate Change Law

As the U.S. Congress has failed to pass meaningful climate legislation, the EPA has initiated a series of regulations under the Clean Air Act designed to recognize greenhouse gases as endangering human health and welfare, and set greenhouse gas emission standards for vehicle fleets and for major stationary sources. Unsurprisingly these efforts have been challenged in the DC Circuit Court of Appeals. This paper discusses both the substantive and procedural issues surrounding the cases, all of which merit attention: in the absence of viable climate legislation these decisions will have important bearing on the extent to which the United States …

Handbook For Promoting Foreign Direct Investment In Medium-Size, Low-Budget Cities In Emerging Markets, Vale Columbia Center On Sustainable International Investment, Millennium Cities Initiative

Columbia Center on Sustainable Investment Books

In November 2009, the Vale Columbia Center on Sustainable International Investment and the Millennium Cities Initiative (MCI) released the Handbook for Promoting Foreign Direct Investment in Medium-size, Low-Budget Cities in Emerging Markets. With foreign direct investment (FDI) flows declining worldwide by an estimated 40-50% this year (following a decline of over 10% in 2008), investment promotion has become more important than ever: in a highly competitive world FDI market, promotion can make all the difference.

Investment promotion is particularly important for cities other than capital cities, as investors in manufacturing and services often locate primarily in a country’s capital …

Bilateral Investment Treaties And Fdi Flows, Lisa E. Sachs

Columbia Center on Sustainable Investment Staff Publications

Given that one of the principal purposes of bilateral investment treaties (BITs) is to help countries attract investment flows (by protecting investments), it is only natural that the question has been raised whether they do, in fact, lead to higher investment flows. The main studies on this topic from the past decade are collected in The Effect of Treaties on Foreign Direct Investment: Bilateral Investment Treaties, Double Taxation Treaties, and Investment Flows (Oxford University Press, 2009), a volume I edited with Karl P. Sauvant.

United States Response To Questionnaire, June M. Besek, Jane C. Ginsburg, Caitlin Grusauskas

Faculty Scholarship

ALAI-USA is the U.S. branch of ALAI (Association Littèraire et Artistique Internationale). ALAI-USA was started in the 1980's by the late Professor Melville B. Nimmer, and was later expanded by Professor John M. Kernochan.

The Transformation Of The Laws Of War Into Humanitarian Law, Mark Antaki

Studio for Law and Culture

This study undertakes a genealogy of crimes against humanity. It inquires into key historical transformations that preceded the official birth of crimes against humanity in positive international law. The study brings to light changes in understandings of law, politics, and human being-together that accompany the articulation of crimes against humanity.

To speak of crimes against humanity is to speak the death of God. With the French Revolution, man displaces God as ground and measure of law and politics, leading to the articulation of crimes against humanity. The man who displaces God is “natural man,” a man who is naturally …

Is Cyberprostitution Prostitution? New Paradigm, Old Crime, Brooke Campbell

Studio for Law and Culture

In any given industry, machines are rapidly replacing workers. Alternately celebrated as the liberation of the worker from the grind and peril of manual labor and lamented as the condemnation of the worker to lowered wages and/or the effeteness of unemployment, so-called “advances” in technology problematically recast the labor-capital relation as a human-machine relation. What does this process look like in the context of a criminalized industry like the sex industry? In this paper, I examine the way in which cyberprostitution — ostensibly, an advance in the technology of communication — places the conceptual terrain of prostitution into question. For …

From Privacy To Liberty: Sharing After Lawrence, Thomas P. Crocker

Studio for Law and Culture

From Privacy to Liberty addresses the failure of the Constitution to protect shared social aspects of ordinary life. Under the Supreme Court’s third-party doctrine, if I reveal information to another person, I no longer have an expectation of privacy, and thus, I no longer have Fourth Amendment protection in that information. This much-maligned doctrine has been criticized by many, and defended only once recently in the pages of the Michigan Law Review. The effect of this doctrine is to leave most aspects of ordinary life shared in the company of others constitutionally unprotected. For example, revealing one’s location to …

Fast-Fish, Loose-Fish: How Whalemen, Lawyers, And Judges Created The British Property Law Of Whaling, Robert Deal

Studio for Law and Culture

Anglo-American whalemen in the eighteenth and nineteenth centuries used customs largely of their own creation to resolve disputes at sea over contested whales. These customs were remarkably effective as litigation was rare and violence even rarer. Legal scholars such as Robert Ellickson have correctly pointed to these customs as an example of how close knit communities settle disputes without recourse to formal legal institutions or even knowledge of the applicable law. Ellickson’s belief, however, that these whaling customs were universally followed at sea and were – in turn – adopted by courts, is not entirely accurate. While courts often deferred, …

Blackboard Jungle: Delinquency, Psychiatry, And The Bio-Politics Of Brown, Anders Walker

Studio for Law and Culture

In 1955, Metro-Goldwyn-Mayer released a controversial film about juvenile delinquency entitled Blackboard Jungle. Georgia Governor Ernest Vandiver subsequently used the film as a metaphor for what would happen to southern schools were Brown enforced, marking the beginnings of a much larger campaign to articulate southern resistance to integration in popular terms. Taking Blackboard Jungle as a starting point, this article recovers the intersection between discourses of delinquency and desegregation at mid-century, showing how civil rights groups and segregationists alike both drew from mass culture and social psychiatry to advance their constitutional agendas. It concludes by showing that even as …

Kernochan Center News - Fall 2009, Kernochan Center For Law, Media And The Arts

Kernochan Center for Law, Media, and the Arts

No abstract provided.

Cultural Culprits, Michelle Mckinley

Studio for Law and Culture

This paper draws from a longer Article that examines questions of agency, victimization, and cultural essentialism in U.S. asylum adjudication and cultural defense cases specifically, and in international human rights law more broadly. I explore the adjudication of FGC asylum claims based on cultural persecution” that encode a racialized view of culture. I describe the historical trajectory of contemporary FGC claims through a detailed analysis of colonial anti-excision campaigns. I compare early 19th century anti-excision campaigns with contemporary maternal imperialism, as international law, UN agencies, and international financial institutions became more responsive to feminist concerns about eradicating FGC. Throughout the …

Climate Change And The Right To Food: A Comprehensive Study, Human Rights Institute

Human Rights Institute

Climate change and the policies instituted to combat it are affecting the realiza- tion of the right to food in myriad, often unnoticed ways. This report highlights how – despite the common objective to preserve human welfare for present and future generations – the climate change regime and the human rights regime addressing the right to food have failed to coordinate their agendas and to collab- orate to each other’s mutual benefit. The current climate change regime fails to accurately address the human harms resulting from climate change itself, and is not operating with the necessary safeguards and preventive measures …

Globalization And The Provision Of Incentives Inside The Firm: The Effect Of Foreign Competition, Vincente Cuñat, Maria Guadalupe

Center for Contract and Economic Organization

This article studies the effect of changes in foreign competition on the structure of compensation and incentives of U.S. executives. We find that import penetration (instrumented with exchange rates and tariffs) leads to more incentive provision in a variety of ways. First, it increases the sensitivity of pay to performance. Second, it increases within-firm pay differentials between executive levels, with CEOs typically experiencing the largest wage increases. Finally, higher foreign competition is also associated with a higher demand for talent. These results suggest that increased foreign competition can explain some of the recent trends in compensation structures.

An Aggregate Approach To Antitrust: Using New Data And Rulemaking To Preserve Drug Competition, C. Scott Hemphill

Center for Contract and Economic Organization

This Article examines the "aggregation deficit" in antitrust: the pervasive lack of information, essential to choosing an optimal antitrust rule, about the frequency and costliness of anticompetitive activity. By synthesizing available information, the present analysis helps close the information gap for an important, unresolved issue in U.S. antitrust policy: patent settlements between brand-name drug makers and their generic rivals. The analysis draws upon a new dataset of 143 such settlements.

Due to the factual complexity of individual brand-generic settlements, important trends and arrangements become apparent only when multiple cases are examined collectively. This aggregate approach provides valuable information that can …

The Law, Culture, And Economics Of Fashion, C. Scott Hemphill, Jeannie Suk

Center for Contract and Economic Organization

Fashion is one of the world’s most important creative industries. It is the major output of a global business with annual U.S. sales of more than $200 billion — larger than those of books, movies, and music combined. Everyone wears clothing and inevitably participates in fashion to some degree. Fashion is also a subject of periodically rediscovered fascination in virtually all the social sciences and the humanities. It has provided economic thought with a canonical example in theorizing about consumption and conformity. Social thinkers have long treated fashion as a window upon social class and social change. Cultural theorists have …

The Effect Of Nepa Outside The Courtroom, Michael B. Gerrard

Faculty Scholarship

The central purpose of the National Environmental Policy Act (NEPA) is not to produce gorgeous or perfect documents; that’s a means to an end. The ultimate purpose is to improve governmental decisionmaking by making relevant information available to officials and by ensuring that everyone affected by the decisions is given a voice. I would like to focus on the effect of NEPA on decisions.

I will discuss three issues.

First, I will talk about the effect that NEPA has had on internal decisionmaking by agencies.

Second, since NEPA attempts to focus decisionmakers on predictions of future environmental conditions with or …

The Cultural Defense: Reflections In Light Of The Model Penal Code And The Religious Freedom Restoration Act, Kent Greenawalt

Faculty Scholarship

I wrote this essay after participating in a 2006 workshop on Criminal Law and Cultural Diversity, which discussed, among other subjects, the wisdom of providing a "cultural defense." Uncertain just how far such a defense might expand on defenses already available, I undertook to explore that topic.

The phrase "a cultural defense" suggests an either/or choice that any legal system might make. That matters are much more complex than this is part of the burden of this essay. A "cultural defense" in its most general sense refers to a wide range of ways in which evidence about a defendant's cultural …

The Use Of Force Against States That Might Have Weapons Of Mass Destruction, Matthew C. Waxman

Faculty Scholarship

The Iraq war rekindled debate – debate now further inflamed in discussions of Iran and North Korea-about the legal use of force to disarm an adversary state believed to pose a threat of catastrophic attack, including with weapons of mass destruction (WMD). Coinciding with this debate is the stark fact that intelligence about allegedly hostile states' WMD capabilities is and will remain limited.

This Article aims to develop more fully how an objective reasonableness approach to WMD capability assessments would work, and more generally how the law governing use of force should guide capability assessments. It begins in Part I …

Optimization And Its Discontents In Regulatory Design: Bank Regulation As An Example, William H. Simon

Faculty Scholarship

Economists and economically-trained lawyers tend to speak about regulation from a perspective organized around the basic norm of optimization. By contrast, an important managerial literature espouses a perspective organized around the basic norm of reliability. The perspectives are not logically inconsistent, but the economist’s view sometimes leads in practice to a preoccupation with decisional simplicity and cost minimization at the expense of complex judgment and learning. Drawing on a literature often ignored by economists and lawyers, I elaborate the contrast between the optimization and reliability perspectives. I then show how it illuminates current discussions of the reform of bank regulation.

Post-Modern Meditations On Punishment: On The Limits Of Reason And The Virtues Of Randomization, Bernard E. Harcourt

Faculty Scholarship

This chapter presents an authoritative overview of punishment, with particular emphasis on the limits of reason and the virtue of randomization. It includes comments by some of the nation's top legal scholars from the field of criminal law, tackling topics such as the Enlightenment ideal of social engineering through punishment and the role of chance in the administration of criminal justice.

Cash-For-Clunkers Program: Better For Industry Than Environment, Michael B. Gerrard

Faculty Scholarship

On June 24, President Barack Obama signed into law the Consumer Assistance to Recycle and Save Act of 2009 (CARS). For a limited period of time, it will give up to $4,500 to owners of vehicles with poor fuel economy who trade them in for more efficient new vehicles. This “cash-for-clunkers” program was touted as meeting three objectives: increasing vehicle sales, at a time when the U.S. auto industry is struggling; reducing fuel use; and reducing greenhouse gas emissions.

This column will describe how the new program will work and what kinds of vehicles can be turned in and purchased …

U.S. Class Actions And The "Global Class", George A. Bermann

Faculty Scholarship

Robert Casad's articles on comparative civil procedure were among the first comparative law pieces that caught my eye when, as a freshly-minted associate at a leading New York law firm, I found myself leafing through comparative law journals, rather than amassing billable hours. I had no idea then that comparative law could be as fascinating as I have come to find it, certainly not in a field like civil procedure where the dividends of comparative law work were by no means obvious to me. (Comparative law was not even taught in any guise at Yale Law School in the late …

Bargaining Around Bankruptcy: Small Business Workouts And State Law, Edward R. Morrison

Faculty Scholarship

Federal bankruptcy law is rarely used by distressed small businesses. For every 100 that suspend operations, at most 20 file for bankruptcy. The rest use state law procedures to liquidate or reorganize. This paper documents the importance of these procedures and the conditions under which they are chosen using firm-level data on Chicago-area small businesses. I show that business owners bargain with senior lenders over the resolution of financial distress. Federal bankruptcy law is invoked only when bargaining fails. This tends to occur when there is more than one senior lender or when the debtor has defaulted on senior debt …

Burden Of Proof In Environmental Disputes In The Wto: Legal Aspects, Henrik Horn, Petros C. Mavroidis

Faculty Scholarship

This paper discusses allocation of burden of proof in environmental disputes in the WTO system. Besides laying down the natural principles that (i) the complainant carries the burden to (ii) make a prima facie case that its claim holds, WTO adjudicating bodies have said little of more general nature. The paper therefore examines the case law of relevance to environmental policies, to establish the rules concerning burden of proof that are likely to be applied in such disputes. Evaluating this case law, the paper makes two observations,: First, in cases submitted under the GATTWTO, adjudicating bodies have committed errors regarding …

Decisional Dignity: Teenage Abortion, Bypass Hearings, And The Misuse Of Law, Carol Sanger

Faculty Scholarship

How might we think about reforming abortion regulation in a world in which the basic legality of abortion may, as a matter of constitutional law, at last be relatively secure? I have in mind the era just upon us in which the overturn of Roe v. Wadeno longer looms so threateningly over the reproductive rights community in the United States and is no longer necessarily its central concern. There is now a general and seemingly well-founded optimism that under the Obama administration, those who support and rely on reproductive rights will not have to pray nightly for the health …

The Interdependent Relationship Between Internal And External Separation Of Powers, Gillian E. Metzger

Faculty Scholarship

It has been the best of times and the worst of times for internal separation of powers. Over the past few years, internal checks on executive power have been a central topic of legal academic debate – rarely have details of public administrative structure received so much attention. To some extent, this sudden popularity reflects growing interest in questions of institutional design. Unfortunately, however, another reason for this attention is the prominent erosion and impotence of such internal constraints under the recent administration of President George W. Bush.

Agency And Luck, Joseph Raz

Faculty Scholarship

Advancing an account of responsibility which is based on the functioning of our rational capacities, the paper revisits some central aspects of the moral luck puzzle. It proposes a new variant of Williams’ agent-regret, but concludes that its scope does not coincide with cases of moral luck. It then distinguishes different ways in which the factors beyond our control feature in our engagement with the world which show how the guidance principle (we are responsible for actions guided by our rational powers) recognises a narrower range of situations of moral luck than is often supposed, allowing to distinguish between responsibility …

Introduction, George A. Bermann

Faculty Scholarship

Who would have imagined even fifteen years ago that a notion of "EU citizenship" would come to occupy center-stage in the arena of EU legal developments and widely permeate fields of EU law to which citizenship at the EU level long appeared to have little to say? By contrast, Member State citizenship lay at the heart of things from the start, as rights and obligations alike seemed to turn, at least largely, on whether an interested person bore the citizenship or nationality of a Member State.

The Costs Of Carbon: Examining The Competitiveness And International Trade Dimensions Of The Waxman-Markey House Bill, Svetlana German

Sabin Center for Climate Change Law

As the United States considers unilateral climate change action, uncertainty exists as to the compatibility of the proposed trade related measures to global warming. This paper considers the rationale behind any trade measures designed to address competitiveness and carbon leakage following the introduction of unilateral climate change legislation (Part I). The paper then assesses the international legality of the proposed measures in the Waxman-Markey Bill under World Trade Organisation (WTO) law (Part II) and proposes alternative mechanisms that may yield economically sound solutions while remaining mindful of equitable principles (Part III).

The Warren Court, Legalism And Democracy: Sketch For A Critique In A Style Learned From Morton Horwitz, William H. Simon

Faculty Scholarship

Morton Horwitz's Transformation books developed a critical approach that elaborates the underlying premises of legal doctrine and compares them to suppressed or ignored alternative perspectives. However, Horwitz's Warren Court book is largely an appreciation of the Court's doctrine that accepts at face value its underlying premises and the judges' claim to vindicate democratic values. In this essay, I speculate on what a Transformation-style critique of the Warren Court might look like and suggest that the Court is vulnerable to criticisms analogous to those the Transformation books make of earlier doctrine. I suggest that book ignores an alternative perspective on social …