Law Commons^™

Accounting For The Employee-Employer Relationship In Antitrust Analysis, Justin Mccrary, Bryan Ricchetti

Faculty Scholarship

Recent years have seen increased regulatory scrutiny of and private litigant claims regarding potential monopsony power in labor markets. In this paper, we discuss a defining feature of that analysis — a feature that differentiates it from antitrust analysis of product-market restraints. That feature is the employee-employer relationship. Employer-employee relationships, and investments that workers and firms make in such relationships, are central to analysis of antitrust issues in labor markets.

Publicizing Corporate Secrets, Christopher J. Morten

Faculty Scholarship

Federal regulatory agencies in the United States hold a treasure trove of valuable information essential to a functional society. Yet little of this immense and nominally “public” resource is accessible to the public. That worrying phenomenon is particularly true for the valuable information that agencies hold on powerful private actors. Corporations regularly shield vast swaths of the information they share with federal regulatory agencies from public view, claiming that the information contains legally protected trade secrets (or other proprietary “confidential commercial information”). Federal agencies themselves have largely acceded to these claims and even fueled them, by construing restrictively various doctrines …

Financial Inclusion, Cryptocurrency, And Afrofuturism, Lynnise E. Pantin

Faculty Scholarship

As a community, Black people consistently face barriers to full participation in traditional financial markets. The decentralized nature of the cryptocurrency market is attractive to a community that has been historically and systematically excluded from the traditional financial markets by both private and public actors. As new entrants to any type of financial market, Black people have increasingly embraced blockchain technology and cryptocurrency as a path towards the wealth-building opportunities and financial freedom they have been denied in traditional markets. This Article analyzes whether the technology’s decentralized system will lead to financial inclusion or increased financial exclusion. Without reconciling the …

Ny, New Jersey Adopt Laws Requiring Flood Risk Disclosure For Homebuyers, Tenants, Michael B. Gerrard, Edward Mctiernan

Faculty Scholarship

In the wake of several incidents of unprecedented rainfall and disastrous flooding, both New York and New Jersey have adopted laws requiring the sellers of residential properties to tell buyers, and landlords to tell tenants, about known flood risks. The New Jersey law also requires disclosures in commercial transactions. A New York enactment also eliminates the commonlyused ability of sellers to avoid making property disclosures (not only about flood risk) by taking $500 off the purchase price.

Administrative Harms, Philip A. Hamburger

Faculty Scholarship

Administrative power imposes serious wounds on the United States, its Constitution, and its citizens. Therefore, a persuasive defense of administrative power would need to respond to these harms, showing that it is constitutional and otherwise desirable, notwithstanding its many costs. If the administrative state is defensible, it will be necessary to wrestle with all of the damage it incurs.

The Major Questions Doctrine: Right Diagnosis, Wrong Remedy, Thomas W. Merrill

Faculty Scholarship

The Supreme Court’s “major questions” doctrine has been attacked as an attempt to revive the nondelegation doctrine. The better view is that this statutory interpretation responds to perceived failings of the Chevron doctrine, which has governed court-agency relations since 1984. This article criticizes the major question doctrine and proposes modifications to the Chevron doctrine that would partially correct its failings while preserving the traditional interpretive role of courts.

Rolling Back Transparency In China's Courts, Benjamin L. Liebman, Rachel E. Stern, Xiaohan Wu, Margaret Roberts

Faculty Scholarship

Despite a burgeoning conversation about the centrality of information management to governments, scholars are only just beginning to address the role of legal information in sustaining authoritarian rule. This Essay presents a case study showing how legal information can be manipulated: through the deletion of previously published cases from China’s online public database of court decisions. Using our own dataset of all 42 million cases made public in China between January 1, 2014, and September 2, 2018, we examine the recent deletion of criminal cases from the China Judgements Online website. We find that the deletion of cases likely results …

Liability Beyond Law: Conceptions Of Fairness In Chinese Tort Cases, Rachel E. Stern, Benjamin L. Liebman, Wenwa Gao, Xiaohan Wu

Faculty Scholarship

Empirical work consistently finds that Chinese courts resolve civil cases by finding a compromise solution. But beyond this split-it-down-the-middle tendency, when and how do Chinese courts arrive at decisions that feel “fair and just” in cases in which they invoke those ideas? Drawing on a data set of 9,485 tort cases, we find that Chinese courts impose liability on two types of parties with ethical, but not legal, obligation to victims: (1) participants in a shared activity and (2) those who control a physical space. In these cases, Chinese courts stretch the law to spread losses through communities and to …

Yes, Tax The Rich — And Also The Merely Affluent, Alex Raskolnikov

Faculty Scholarship

Most Americans believe that economic inequality is too high, and many think that higher taxes are the answer. There is some disagreement about who should pay higher taxes, but there is broad agreement about who should not. At least since the heyday of the Occupy Wall Street movement, 'We Are the 99 Percent'' has been the dividing line.

“Those in the 1 percent are walking off with the riches, but in doing so they have provided nothing but anxiety and insecurity to the 99 percent,” explained Nobel laureate Joseph Stiglitz in his 2012 book The Price of Inequality. The …

Law As Persuasion, Bert I. Huang

Faculty Scholarship

When does the law persuade us about what is right or wrong – and when does it not? On topics ranging from racial equality to abortion to same-sex marriage, historians have debated and puzzled over the law’s persuasive force on our collective moral intuitions. Meanwhile, other scholars have sought out individual-level insights into the psychology of law’s persuasion, under the microscope of controlled experiments.

This chapter presents evidence of the law’s influence on our moral intuitions in a survey experiment based on a classic dilemma known as the “trolley problem,” in which someone must make a choice about whether to …

States Of Emergency: Covid-19 And Separation Of Powers In The States, Richard Briffault

Faculty Scholarship

No event in recent years has shone a brighter spotlight on state separation of powers than the COVID-19 pandemic. Over a more than two-year period, governors exercised unprecedented authority through suspending laws and regulations, limiting business activities and gatherings, restricting individual movement, and imposing public health requirements. Many state legislatures endorsed these measures or were content to let governors take the lead, but in some states the legislature pushed back, particularly — albeit not only—where the governor and legislative majorities were of different political parties. Some of these conflicts wound up in state supreme courts.

This Essay examines the states’ …

Delegating War Powers, Michael D. Ramsey, Matthew C. Waxman

Faculty Scholarship

Academic scholarship and political commentary endlessly debate the President’s independent constitutional power to start wars. And yet, every major U.S. war in the last sixty years was fought pursuant to war-initiation power that Congress gave to the President in the form of authorizations for the use of military force. As a practical matter, the central constitutional question of modern war initiation is not the President’s independent war power; it is Congress’s ability to delegate its war power to the President.

It was not until quite late in American history that the practice of war power delegation became well accepted as …

The End Of Asylum Redux And The Role Of Law School Clinics, Elora Mukherjee

Faculty Scholarship

The Biden Administration has perpetuated many of the prior administration’s hostile policies undermining access to asylum at the southern border. This Essay first examines these policies and then identifies emerging opportunities for law school clinics to address these new challenges, including by serving asylum seekers south of the U.S.-Mexico border.

Exemplary Legal Writing 2020: Four Recommendations, Jed S. Rakoff, Lev Menand

Faculty Scholarship

For some years, John Coffee of the Columbia Law School, one of the country’s leading experts on corporate and securities law, has been critical of the government’s failure to effectively prosecute corporate crime. In this book, Coffee both propounds a general theory of why such criminality is rarely prosecuted in a meaningful way, and also offers some creative solutions to such underenforcement.

Navigating Between "Politics As Usual" And Sacks Of Cash, Daniel C. Richman

Faculty Scholarship

Like other recent corruption reversals, Percoco was less about statutory text than what the Court deems “normal” politics. As prosecutors take the Court’s suggestions of alternative theories and use a statute it has largely ignored, the Court will have to reconcile its fears of partisan targeting and its textualist commitments

Exemplary Legal Writing 2021: Four Recommendations, Jed S. Rakoff, Lev Menand

Faculty Scholarship

This is not the first great book that Erwin Chemerinsky, Dean of Berkeley Law School, has authored, but it is perhaps his most chilling. For in 308 pages of tightly reasoned detail, he demonstrates beyond cavil how the Supreme Court of recent decades (and well before the addition of the Trump appointees) undertook to undercut most of the reforms by which the Warren Court had sought to reduce police misconduct.

Contract Production In M&A Markets, Stephen J. Choi, Mitu Gulati, Matthew Jennejohn, Robert E. Scott

Faculty Scholarship

Contract scholarship has devoted considerable attention to how contract terms are designed to incentivize parties to fulfill their obligations. Less attention has been paid to the production of contracts and the tradeoffs between using boilerplate terms and designing bespoke provisions. In thick markets everyone uses the standard form despite the known drawbacks of boilerplate. But in thinner markets, such as the private deal M&A world, parties trade off costs and benefits of using standard provisions and customizing clauses. This Article reports on a case study of contract production in the M&A markets. We find evidence of an informal information network …

The International Law Profile Of The Ali, George A. Bermann

Faculty Scholarship

Though its focus, most notably in its Restatements, has traditionally been on domestic U.S. law, the American Law Institute (ALI) has conspicuously turned “international” in recognition of the fact that U.S. law does not, in the present world, operate in isolation from the law of foreign jurisdictions and international institutions. To be sure, the two most prominent Restatements in the field continue to bear the term “U.S.” in their title: “Restatement of the Foreign Relations Law of the United States” and “The U.S. Law of International Commercial and Investor-State Arbitration.” But both present bodies of law profoundly influenced by, and …

The Nih-Moderna Vaccine: Public Science, Private Profit, And Lessons For The Future, Christopher J. Morten

Faculty Scholarship

This commentary highlights the scientific history of the NIH-Moderna COVID-19 vaccine and corroborates Sarpatwari’s theme of private capture of value created by the public. The commentary also identifies missteps by the Trump and Biden Administrations and offers policy recommendations: better contracts with and incentives for pharmaceutical manufacturers and a not-for-profit “public option” for pharmaceutical development.

Chevron'S Ghost Rides Again, Thomas W. Merrill

Faculty Scholarship

Professor Gary Lawson has offered a remarkable account of the fate of the Chevron doctrine during a recent year in the Supreme Court, from August 2021 to June 2022. When one examines lower court decisions, petitions seeking review of those decisions, briefs filed by the parties, and transcripts of oral arguments, Chevron made frequent appearances during the year. But when one reads the published opinions of the Court, one finds virtually no reference to Chevron. Based on the published opinions of the Court, it was as if the Chevron decision did not exist.

The status of Chevron as a …

Understanding Intellectual Property: Expression, Function, And Individuation, Mala Chatterjee

Faculty Scholarship

Underlying the fundamental structure of intellectual property law — specifically, the division between copyright and patent law — are at least two substantive philosophical assumptions. The first is that artistic works and inventions are importantly different, such that they warrant different legal systems: copyright law on the one hand, and patent law on the other. And the second is that particular artistic works and inventions can be determinately individuated from each other, and can thereby be the subjects of distinct and delineated legal rights. But neither the law nor existing scholarship provides a comprehensive analysis of these categories, what distinguishes …

Learned Hand's Copyright Law, Shyamkrishna Balganesh

Faculty Scholarship

Learned Hand is often described as the greatest copyright judge to have ever sat on the bench. By the 1950s, the most important parts of U.S. copyright law had been his creation, all from his time as a judge on the Second Circuit Court of Appeals. Despite all of this, there has been little systematic analysis of Hand’s approach to copyright and of the reasons why his jurisprudence in multiple areas of copyright law have survived the test of time. This Article argues that the longevity, influence and canonical status of Hand’s contributions to copyright are closely tied to his …

Intra-Eu Investment Disputes And The Monopoly Over The Interpretation Of Eu Law, Petros C. Mavroidis, Frederico Ortino

Faculty Scholarship

Following a recent European Charter Treaty (“ECT”) decision, it appears that the fate of intra-EU investment disputes, when adjudicated in fora other than the Luxembourg courts, is finally all but sealed. In Green Power, an arbitration tribunal confirmed prior decisions taken in different jurisdictions that there is no room for adjudicating intra-EU investment disputes away from Luxembourg. This decision sided with the approach already developed by the Court of Justice of the European Union (“CJEU”) in three decisions, namely, Achmea, Komstroy, and PL Holdings, which in turn led to legislative action by the Energy Charter Treaty aiming to put an …