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Investment Promotion Agencies And Sustainable Fdi: Moving Toward The Fourth Generation Of Investment Promotion, Columbia Center On Sustainable Investment, World Association Of Investment Promotion Agencies Jun 2010

Investment Promotion Agencies And Sustainable Fdi: Moving Toward The Fourth Generation Of Investment Promotion, Columbia Center On Sustainable Investment, World Association Of Investment Promotion Agencies

Columbia Center on Sustainable Investment Staff Publications

In April and May 2010, CCSI supported WAIPA to conduct its annual survey. This report, Investment Promotion Agencies and Sustainable FDI: Moving toward the Fourth Generation of Investment Promotion, benchmarks the responses of IPAs regarding sustainable FDI and its four dimensions (economic development, environmental sustainability, social development, governance) and finds, among other things, that these are unevenly addressed by investment promotion strategies and investment incentives. The report also draws attention to the desirability of attracting sustainable FDI, rather than focusing on volume of investment alone.

In 2017, CCSI also helped the World Association of Investment Promotion Agencies (WAIPA) to conduct ...


Choice Of Law And Employee Restrictive Covenants: An American Perspective, Gillian Lester, Elizabeth Ryan Jan 2010

Choice Of Law And Employee Restrictive Covenants: An American Perspective, Gillian Lester, Elizabeth Ryan

Faculty Scholarship

Employees are increasingly mobile across state lines. This is partly the result of technological change facilitating individual movement and communication, but also a result of corresponding changes in corporate organization to establish offices and interests in multiple jurisdictions. With these developments, there has been a rise in litigation surrounding the enforcement of employee covenants not to compete when the parties or issues involved have connections to multiple jurisdictions. The emerging body of law intrigues and confounds lawyers and commentators because of its complexity and unpredictability. This essay is an effort to describe recent legal developments in the United States, situating ...


The Disposing Power Of The Literature, Thomas W. Merrill Jan 2010

The Disposing Power Of The Literature, Thomas W. Merrill

Faculty Scholarship

The Constitution as we understand it includes principles that have emerged over time in a common law fashion. One such principle is the disposing power of the legislature – the understanding that only the legislature has the power to arrange, order, and distribute the power to act with the force of law among the different institutions of society. This Essay illustrates the gradual emergence of the disposing power in criminal, civil, and administrative law, and offers some reasons why it is appropriate that the legislature be given this exclusive authority. One implication of the disposing power is that another type of ...


The So-Called Right To Privacy, Jamal Greene Jan 2010

The So-Called Right To Privacy, Jamal Greene

Faculty Scholarship

The constitutional right to privacy has been a conservative bugaboo ever since Justice Douglas introduced it into the United States Reports in Griswold v. Connecticut. Reference to the "so-called" right to privacy has become code for the view that the right is doctrinally recognized but not in fact constitutionally enshrined. This Article argues that the constitutional right to privacy is no more. The two rights most associated historically with the right to privacy are abortion and intimate sexual conduct, yet Gonzales v. Carhart and Lawrence v. Texas made clear that neither of these rights is presently justified by its proponents ...


The Contradictions Of Juvenile Crime & Punishment, Jeffery Fagan Jan 2010

The Contradictions Of Juvenile Crime & Punishment, Jeffery Fagan

Faculty Scholarship

Juvenile incarceration in the United States is, at first glance, distinctly different from its adult counterpart. While some juvenile facilities retain the iconic aesthetic of adult incarceration – orange jumpsuits, large cellblocks, uniformed guards, barbed wire, and similar heavy security measures – others have trappings and atmospherics more reminiscent of boarding schools, therapeutic communities, or small college campuses. These compact, benign settings avoid the physical stigmata of institutional life and accord some autonomy of movement and intimacy in relations with staff. They also give primacy to developmentally appropriate and therapeutic interventions.


Social Welfare And Fairness In Juvenile Crime Regulation, Elizabeth S. Scott, Laurence Steinberg Jan 2010

Social Welfare And Fairness In Juvenile Crime Regulation, Elizabeth S. Scott, Laurence Steinberg

Faculty Scholarship

The question of how lawmakers should respond to developmental differences between adolescents and adults in formulating juvenile crime policy has been the subject of debate for a generation. A theme of the punitive law reforms that dismantled the traditional juvenile justice system in the 1980s and 1990s was that adolescents were not different from adults in any way that was relevant to criminal punishment – or at least that any differences were trumped by the demands of public safety. But this view has been challenged in recent years; scholars and courts have recognized that adolescents, due to their developmental immaturity, are ...


Role Differentiation And Lawyer's Ethics: A Critique Of Some Academic Perspectives, William H. Simon Jan 2010

Role Differentiation And Lawyer's Ethics: A Critique Of Some Academic Perspectives, William H. Simon

Faculty Scholarship

Much recent academic discussion exaggerates the distance between plausible legal ethics and ordinary morality. This essay criticizes three prominent strands of discussion: one drawing on the moral philosophy of personal virtue, one drawing on legal philosophy, and a third drawing on utilitarianism of the law-and-economics variety. The essay uses as a central reference point the "Mistake-of-Law" scenario in which a lawyer must decide whether to rescue an opposing party from the unjust consequences of his own lawyer's error I argue that academic efforts to shore up the professional inclination against rescue are not plausible. I conclude by recommending an ...


New Governance Anxieties: A Deweyan Response, William H. Simon Jan 2010

New Governance Anxieties: A Deweyan Response, William H. Simon

Faculty Scholarship

Most participants in the Symposium on New Governance and the Transformation of Law found the "new governance" phenomenon attractive and important, but as David and Louise Trubek note, they were not entirely comfortable with it.

One anxiety concerned the difficulty of defining the phenomenon and situating it in the universe of familiar political ideas and institutions. The term gets applied to a variety of institutions. To some people, these institutions do not fit snugly into any familiar political categories. To others, they bear a suspicious resemblance to categories that no longer inspire optimism – for example, Romantic communitarianism, corporatism, or "new ...


The Most Popular Tool: Tax Increment Financing And The Political Economy Of Local Government, Richard Briffault Jan 2010

The Most Popular Tool: Tax Increment Financing And The Political Economy Of Local Government, Richard Briffault

Faculty Scholarship

Tax increment financing (TIF) is the most widely used local government program for financing economic development in the United States, but the proliferation of TIF is puzzling. TIF was originally created to support urban renewal programs and was narrowly focused on addressing urban blight, yet now it is used in areas that are plainly unblighted. TIF brings in no outside money and provides no new revenue-raising authority. There is little clear evidence that TIF has done much to help the municipalities that use it, and it is also a source of intergovernmental tension and a site of conflict over the ...


The Business Improvement District Comes Of Age, Richard Briffault Jan 2010

The Business Improvement District Comes Of Age, Richard Briffault

Faculty Scholarship

It is difficult to say precisely when the business improvement district (BID) was born. BIDs emerged out of legal structures and concepts that date back many decades, but the specific BID form is a relatively recent development. By some accounts, the first BID in the United States was the Downtown Development District of New Orleans, which was established in 1975. Few BIDs were created before 1980, and in most places the surge in BID formation did not really get going until around 1990 – the year that Philadelphia's Center City District was first established. Although new BIDs were created on ...


Activating Systemic Change Toward Full Participation: The Pivotal Role Of Boundary Spanning Institutional Intermediaries, Susan Sturm Jan 2010

Activating Systemic Change Toward Full Participation: The Pivotal Role Of Boundary Spanning Institutional Intermediaries, Susan Sturm

Faculty Scholarship

Racial and social justice advocacy is in an era of transition. Race continues to permeate people's lives and to structure the social and economic hierarchy, but often in complicated ways that elude bright line categories. Disparities frequently result from cognitive bias, unequal access to opportunity networks, and other structural dynamics, rather than from intentional exclusion. For example, disparities in access to higher education persist as a result of differences in access, information, resources, networks, and evaluation, which give rise to achievement differentials at each critical turning point affecting successful advancement. These differences accumulate to produce substantial disparities in college ...


Supremacy Clause Textualism, Henry Paul Monaghan Jan 2010

Supremacy Clause Textualism, Henry Paul Monaghan

Faculty Scholarship

Whatever its status in the statutory interpretation "wars," originalism-driven textualism has assumed an increasingly prominent role in constitutional interpretation, at least within the academy. The focus of this Article is on one such form, namely, "Supremacy Clause textualism", that is, recent textualist claims about the implications of the Supremacy Clause of Article VI. This Article addresses two such claims.

First, in important articles, Professor Bradford Clark argues that the clause is "at the epicenter of [our] constitutional structure" and it "recognizes only the 'Constitution,' 'Laws,' and 'Treaties' of the United States as 'the supreme Law of the Land."' Displacement of ...


Faithful Agent, Integrative, And Welfarist Interpretation, Thomas W. Merrill Jan 2010

Faithful Agent, Integrative, And Welfarist Interpretation, Thomas W. Merrill

Faculty Scholarship

We are in the midst of a series of lively debates about how to interpret enacted laws such as written constitutions and statutes. In constitutional law, there is a spirited clash between "originalists" and "nonoriginalists". In the statutory arena, we have a three-way battle between "textualists," "intentionalists", and "pragmatists." A common feature of these contending schools is an insistence on a single, correct approach to interpretation. In this respect, however, each of these rival theories deviates from the Practice of interpretation. Real world interpreters – to a person – deploy a variety of interpretative methods when they seek to resolve the contested ...


Sticky Intuitions And The Future Of Sexual Orientation Discrimination, Suzanne B. Goldberg Jan 2010

Sticky Intuitions And The Future Of Sexual Orientation Discrimination, Suzanne B. Goldberg

Faculty Scholarship

As once-accepted empirical justifications for discriminating against lesbians and gay men have fallen away, the major stumbling block to equality lies in a set of intuitions, impulses, and so-called common sense views regarding sexual orientation and gender. This Article takes up these impulses and views, which I characterize as "sticky intuitions," to consider both their sustained influence and the prospects for their destabilization. In this effort, I first offer a framework for locating the intuitions' work within contemporary doctrine, culture, and politics. I then advance an extended typology of the intuitions themselves, drawing from case law, scholarly literature, and public ...


Subsidizing The Press, David M. Schizer Jan 2010

Subsidizing The Press, David M. Schizer

Faculty Scholarship

Information is the lifeblood of a free society, and the professional press is a crucial source of information. For many years, the positive externalities from investigative and beat reporting were cross-subsidized by robust advertising and subscription revenue. Yet the professional press is experiencing a severe economic crisis, and news organizations across the nation are on the brink of insolvency. When an activity that generates positive externalities is undersupplied, the textbook policy response is a government subsidy. Yet if the press becomes financially dependent on the government, would they be deterred from monitoring and criticizing the government? If so, the subsidy ...


A Conversation About Problem-Solving Courts: Take 2, Jane M. Spinak Jan 2010

A Conversation About Problem-Solving Courts: Take 2, Jane M. Spinak

Faculty Scholarship

The University of Maryland Law Journal of Race, Religion, Gender and Class symposium on problem-solving courts surfaced a wide array of issues on the meaning and practices of these courts. My prepared remarks at the symposium addressed the first issue discussed in this article: the potential disparate impact of problem-solving courts on minority families who are disproportionately affected by these court processes. The second part of the article draws on the discussion during the symposium to reflect on the difficulty supporters and critics of the problem-solving court movement have in talking and listening to each other.


Gridlock Economy: How Too Much Ownership Wrecks Markets, Stops Innovation, And Costs Lives (Introduction), Michael A. Heller Jan 2010

Gridlock Economy: How Too Much Ownership Wrecks Markets, Stops Innovation, And Costs Lives (Introduction), Michael A. Heller

Faculty Scholarship

Twenty-five new runways would eliminate most air travel delays in America; fifty patent owners are blocking a major drug company from creating a cancer cure; 90 percent of our broadcast spectrum sits idle while American cell phone service suffers. These problems have solutions that can jump-start innovation and help save our troubled economy. So, what's holding us back?


Dispersed Ownership: The Theories, The Evidence, And The Enduring Tension Between "Lumpers" And "Splitters", John C. Coffee Jr. Jan 2010

Dispersed Ownership: The Theories, The Evidence, And The Enduring Tension Between "Lumpers" And "Splitters", John C. Coffee Jr.

Faculty Scholarship

From a global perspective, the single most noticeable fact about corporate governance is the radical dichotomy between dispersed ownership and concentrated ownerships systems, with the latter being much in the majority. Several prominent academics have offered grand theories to explain when dispersed share ownership arises, which have emphasized either legal or political preconditions. Nonetheless, mounting evidence suggests that these theories are overgeneralized and, in particular, do not account for the appearance (to varying degrees) of dispersed ownership in all securities markets. This article concludes that neither legal rules nor political conditions can adequately explain the spread of dispersed ownership across ...


The Us Experience With Copyright Formalities: A Love/Hate Relationship, Jane C. Ginsburg Jan 2010

The Us Experience With Copyright Formalities: A Love/Hate Relationship, Jane C. Ginsburg

Faculty Scholarship

Copyright formalities – conditions precedent to the existence or enforcement of copyright, such as provision of information about works of authorship that will put the public on notice as to a work’s protected status and its copyright ownership, or deposit of copies of the work for the national library or other central authority, or local manufacture of copies of works of foreign origin – have performed a variety of functions in US copyright history. Perhaps of most practical importance today, formalities predicate to the existence or enforcement of copyright can serve to shield large copyright owners who routinely comply with formalities ...


Saving Up For Bankruptcy, Ronald J. Mann, Katherine M. Porter Jan 2010

Saving Up For Bankruptcy, Ronald J. Mann, Katherine M. Porter

Faculty Scholarship

This paper probes the puzzle of why only a few of those for whom bankruptcy would be economically valuable ever choose to file. We use empirical evidence about the patterns of bankruptcy filings to understand what drives the point in time at which the filings occur, and to generate policy recommendations about how the bankruptcy and debt-collection system sorts those that need relief from those that do not.

The paper combines three kinds of data. First, quantitative data collected from judicial filing records that show the weekly, monthly, and annual patterns of bankruptcy filings. Second, 40 interviews with industry professionals ...


Regulatory Dualism As A Development Strategy: Corporate Reform In Brazil, The U.S., And The Eu, Ronald J. Gilson, Henry Hansmann, Mariana Pargendler Jan 2010

Regulatory Dualism As A Development Strategy: Corporate Reform In Brazil, The U.S., And The Eu, Ronald J. Gilson, Henry Hansmann, Mariana Pargendler

Faculty Scholarship

Countries pursuing economic development confront a fundamental obstacle. Reforms that increase the size of the overall pie are blocked by powerful interests that are threatened by the growth-inducing changes. This problem is conspicuous in efforts to create effective capital markets to support economic growth. Controlling owners and managers of established firms successfully oppose corporate governance reforms that would improve investor protection and promote capital market development. In this article, we examine the promise of regulatory dualism as a strategy to diffuse the tension between future growth and the current distribution of wealth and power. Regulatory dualism seeks to mitigate political ...


When The Wto Works, And How It Fails, Anu Bradford Jan 2010

When The Wto Works, And How It Fails, Anu Bradford

Faculty Scholarship

This Article seeks to explain when an international legal framework like the WTO can facilitate international cooperation and when it fails to do so. Using an empirical inquiry into different agreements that the WTO has attempted to facilitate – specifically intellectual property and antitrust regulation – it reveals more general principles about when and why the WTO can facilitate agreement in some situations and not others. Comparing the successful conclusion of the TRIPs Agreement and the failed attempts to negotiate a WTO antitrust agreement reveal that international cooperation is likely to emerge when the interests of powerful states are closely aligned and ...


Discrimination By Comparison, Suzanne B. Goldberg Jan 2010

Discrimination By Comparison, Suzanne B. Goldberg

Faculty Scholarship

Contemporary discrimination law is in crisis, both methodologically and conceptually. The judiciary’s favored heuristic for observing discrimination – a comparator who is like the discrimination claimant but for the protected characteristic – has nearly depleted discrimination jurisprudence and theory. The resulting deficit can be explained, in turn, by the comparator methodology’s profound mismatch with current understandings of identity discrimination and the realities of the modern workplace. Even in run-of-the-mill cases, comparators often cannot be found, particularly in today’s mobile, knowledge-based economy. This difficulty amplifies for complex claims, which rest on thicker understandings of discrimination developed in second-generation intersectionality, identity ...


Marriage As Monopoly: History, Tradition, Incrementalism, And The Marriage/Civil Union Distinction, Suzanne B. Goldberg Jan 2010

Marriage As Monopoly: History, Tradition, Incrementalism, And The Marriage/Civil Union Distinction, Suzanne B. Goldberg

Faculty Scholarship

History and tradition have taken a prominent place as favored rationales for the exclusion of same-sex couples from marriage. Incrementalism likewise has been invoked to suggest that states can permissibly move “one step at a time” to redress the unequal status of same-sex couples, including by creating a civil union/marriage regime instead of providing marriage for all. Yet constitutional jurisprudence is clear that neither longevity nor tradition alone can justify the continuation of a discriminatory rule. This Article asks, then, what work these rationales perform in the marriage/civil union jurisprudence and debate, given their inadequacy from a doctrinal ...


Overcriminalization For Lack Of Better Options: A Celebration Of Bill Stuntz, Daniel C. Richman Jan 2010

Overcriminalization For Lack Of Better Options: A Celebration Of Bill Stuntz, Daniel C. Richman

Faculty Scholarship

Bill Stuntz has brilliantly highlighted the supply side of overcriminalization – how the institutional purposes of criminal justice actors will often be served by more criminal law (and perhaps more criminal enforcement) than is appropriate for a well-functioning society. One might profitably supplement his insights by exploring the demand side, and in particular how criminal law offers a unique and unnecessarily bundled set of institutional and procedural characteristics for which there are no non-criminal substitutes. While for actors within the system, the opacity of criminal law cloaks the self-dealing of agencies and agencies (that's the supply side problem), so for ...


Minimalism And Experimentalism In The Administrative State, Charles F. Sabel, William H. Simon Jan 2010

Minimalism And Experimentalism In The Administrative State, Charles F. Sabel, William H. Simon

Faculty Scholarship

Minimalism is our name for the dominant liberal perspective on public policy implementation in contemporary legal scholarship. Minimalism emphasizes public interventions that incorporate market concepts and practices and that centralize and minimize administrative discretion. This essay appraises Minimalism in relation to a competing liberal view of the administrative state. Experimentalism emphasizes interventions in which central government affords broad discretion to local administrative units but measures and assesses their performance in ways designed to induce continuous learning and revision of standards. We fault Minimalist scholarship for ignoring an important reorientation in public policy along Experimentalist lines in the U.S. and ...


Self-Defense And The Limits Of Wmd Intelligence, Matthew C. Waxman Jan 2010

Self-Defense And The Limits Of Wmd Intelligence, Matthew C. Waxman

Faculty Scholarship

During the 2008 presidential campaign, then-candidate Barack Obama stated: “Sometimes, the preventive use of force may be necessary, but rarely. The experience of Iraq underscores that often, perceived threats are not as real [as] they may seem, and our intelligence may be imperfect. But, when our intelligence is good and defensible we should not rule out the use of force.” This chapter examines ways of assessing legally whether that intelligence is sufficiently good and defensible. It argues that an objective reasonable necessity approach to WMD capability assessments can serve long-term peace and security objectives and, more specifically, how the law ...


Origin Myths, Contracts, And The Hunt For Pari Passu, Mark C. Weidemaier, Robert E. Scott, G. Mitu Gulati Jan 2010

Origin Myths, Contracts, And The Hunt For Pari Passu, Mark C. Weidemaier, Robert E. Scott, G. Mitu Gulati

Faculty Scholarship

Sovereign loans involve complex but largely standardized contracts, and these include some terms that no one understands. Lawyers often account for the existence of these terms through origin myths. Focusing on one contract term, the pari passu clause, this article explores two puzzling aspects of these myths. First, it demonstrates that the myths are inaccurate as to both the clause’s origin and the role of lawyers in contract drafting. Second, the myths often are unflattering, inaccurately portraying lawyers as engaged in little more than rote copying. The article probes this disjunction between the myths and lawyers’ actual practices and ...


Rescuing Jerry From (Basic) Principles, Joseph Raz Jan 2010

Rescuing Jerry From (Basic) Principles, Joseph Raz

Faculty Scholarship

I will say something on two or three related but distinct topics. First, something on the grounding of normative beliefs, a topic – as I see it – in moral epistemology, and then after a brief remark on explanation, something against a certain understanding of basic principles. My observations were prompted by reflection on Jerry’s desire to rescue justice from the facts.


Profiling And Consent: Stops, Searches And Seizures After Soto, Jeffrey Fagan, Amanda Geller Jan 2010

Profiling And Consent: Stops, Searches And Seizures After Soto, Jeffrey Fagan, Amanda Geller

Faculty Scholarship

Following Soto v State (1999), New Jersey was among the first states to enter into a comprehensive Consent Decree with the U.S. Department of Justice to end racially selective enforcement on the state’s highways. The Consent Decree led to extensive reforms in the training and supervision of state police troopers, and the design of information technology to monitor the activities of the State Police. Compliance was assessed in part on the State’s progress toward the elimination of racial disparities in the patterns of highway stops and searches. We assess compliance by analyzing data on 257,000 vehicle ...