Law Commons^™

Kyoto's Clean Development Mechanism In Action: India, China And Brazil, Michael B. Gerrard, Siddharth Sethy, Hui Xu, Bruno Gagliardi

Faculty Scholarship

The Kyoto Protocol is the principal international agreement to reduce global climate change. The Clean Development Mechanism (CDM) helps achieve the Protocol’s objectives by allowing developed countries to pay for reductions of greenhouse gases in developing countries.

The developing countries that are most actively involved in the CDM – and that have the greatest potential for future involvement – are India, China and Brazil. The purpose of this article is to describe the CDM, the activities in these three countries under the CDM, and the current and future role of the United States under the CDM.

Hamdan Confronts The Military Commissions Act Of 2006, George P. Fletcher

Faculty Scholarship

In 2006 the law of war experienced two major shock waves. The first was the decision of the Supreme Court in Hamdan, which represented the first major defeat of the President's plan, based on an executive order of November 2001, to use military tribunals against suspected international terrorists. The majority of the Court held the procedures used in the military tribunal against Hamdan violated common article three of the Geneva Conventions. A plurality offour, with the opinion written by Justice Stevens, based their decision as well on afar-reaching interpretation of the substantive law of war. They held that conspiracy …

Crafting A Scholarly Persona: A Panel Discussion, Ian Ayres, Paul H. Robinson, Carol Sanger, Kimberly Kessler Ferzan

Faculty Scholarship

This is an edited transcript of Crafting a Scholarly Persona, the Scholarship Section's program from the AALS Annual Meeting in 2007. During this program, three established scholars, Ian Ayres, Paul Robinson, and Carol Sanger, discussed their individual career paths – How they chose their article topics, what the goals of their scholarship are, how they view their research agendas, etc. The discussion was intended roughly to mirror Bravo's Inside the Actor's Studio.

Model Uncertainty And The Deterrent Effect Of Capital Punishment, Ethan Cohen-Cole, Steven N. Durlauf, Jeffrey Fagan, Daniel Nagin

Faculty Scholarship

The reintroduction of capital punishment after the end of the Supreme Court moratorium has permitted researchers to employ state level heterogeneity in the use of capital punishment to study deterrent effects. However, no scholarly consensus exists as to their magnitude. A key reason this has occurred is that the use of alternative models across studies produces differing estimates of the deterrent effect. Because differences across models are not well motivated by theory, the deterrence literature is plagued by model uncertainty. We argue that the analysis of deterrent effects should explicitly recognize the presence of model uncertainty in drawing inferences. We …

Building Criminal Capital Behind Bars: Peer Effects In Juvenile Corrections, Patrick J. Bayer, Randi Hjalmarsson, David Pozen

Faculty Scholarship

This paper analyzes the influence that juvenile offenders serving time in the same correctional facility have on each other's subsequent criminal behavior. The analysis is based on data on over 8,000 individuals serving time in 169 juvenile correctional facilities during a two-year period in Florida. These data provide a complete record of past crimes, facility assignments, and arrests and adjudications in the year following release for each individual. To control for the non-random assignment to facilities, we include facility and facility-by-prior offense fixed effects, thereby estimating peer effects using only within-facility variation over time. We find strong evidence of peer …

Two-Dimensional Doctrine And Three-Dimensional Law: A Response To Professor Weinstein, Philip A. Hamburger

Faculty Scholarship

Professor Weinstein examines how the IRB laws would fare under Supreme Court doctrine, and whereas it is my view that these laws should be considered unconstitutional, he reaches largely the opposite conclusion. His article therefore offers a valuable opportunity for further exploration of the constitutional questions, and although there is not sufficient space here to discuss all of his analysis, it seems important at least to draw attention to the major points on which we take different perspectives.

Treaties' Domains, Tim Wu

Faculty Scholarship

When and why do American judges enforce treaties? The question, always important, has become pressing in an age where the United States is party to over 12,000 international agreements. Article VI of the United States Constitution declares "all treaties" the "supreme Law of the Land," and American judges have long had the potential power, under the Constitution, to enforce treaties as they do statutes. But over the history of the United States, judges have not enforced treaties that way. Instead, judicial treaty enforcement is widely seen as unpredictable, erratic, and confusing. As a result, the question of treaty enforcement has …

Shape Stops Story, Elizabeth F. Emens

Faculty Scholarship

Storytelling and resistance are powerful tools of both lawyering and individual identity, as I argue in this brief essay published in Narrative as part of a dialogue on disability, narrative, and law with Rosemarie Garland-Thompson and Ellen Barton. Garland-Thompson's work shows us the life-affirming potential of storytelling, its role in shaping disability identity, and its role in communicating that identity to the outside world. By contrast, Barton powerfully shows how those same life-affirming narratives can force a certain kind of storytelling, can create a mandate to tell one story and not another. In short, Barton reminds us of the need …

Reconfiguring Industrial Policy: A Framework With An Application To South Africa, Ricardo Hausmann, Dani Rodrik, Charles F. Sabel

Faculty Scholarship

The main purpose of industrial policy is to speed up the process of structural change towards higher productivity activities. This paper builds on our earlier writings to present an overall design for the conduct of industrial policy in a low- to middle-income country. It is stimulated by the specific problems faced by South Africa and by our discussions with business and government officials in that country. We present specific recommendations for the South African government in the penultimate section of the paper.

Bankruptcy Decision Making: An Empirical Study Of Continuation, Edward R. Morrison

Faculty Scholarship

Many small businesses attempt to reorganize under Chapter 11 of the U.S. Bankruptcy Code, but most are ultimately liquidated instead. Little is known about this shutdown decision. It is widely suspected that the bankruptcy process exhibits a continuation bias, allowing failing businesses to linger under the protection of the court, which resists liquidation even when it is optimal. This paper examines the shutdown decision in a sample of Chapter 11 bankruptcy cases filed in a typical bankruptcy court over the course of a year. The presence of continuation bias is tested along several dimensions – the extent of managerial control …

Wireless Carterfone, Tim Wu

Faculty Scholarship

Over the next decade, regulators will spend increasing time on conflicts between the private interests of the wireless industry and the public’s interest in the best uses of its spectrum. This report examines the practices of the wireless industry with an eye toward understanding their influence on innovation and consumer welfare.

In many respects, the mobile wireless market is and remains a wonder. Thanks to both policy and technological innovations, devices that were science fiction 30 years ago are now widely available. Over the last decade, wireless mobile has been an “infant industry,” attempting to achieve economies of scale. That …

The Future Of Internet Governance, Tim Wu, David A. Gross

Faculty Scholarship

The issues surrounding Internet naming and Internet governance have been controversial since the mid-1990s. But public attention was drawn to Internet governance in the early 2000s when Europe and other countries declared themselves unhappy with how Internet governance was working, how the domain names were being assigned, and other issues. David, can you summarize what was happening in the early 2000s that created controversy in this area?

Dividend Taxation In Europe: When The Ecj Makes Tax Policy, Alvin C. Warren, Michael J. Graetz

Faculty Scholarship

This article analyzes a complex line of recent decisions in which the European Court of Justice has set forth its vision of a nondiscriminatory system for taxing corporate income distributed as dividends within the European Union. We begin by identifying the principal tax policy issues that arise in constructing a system for taxing cross-border dividends and then review the standard solutions found in national legislation and international tax treaties. Against that background, we examine in detail a dozen of the Court's decisions, half of which have been handed down since 2006. Our conclusion is that the ECJ is applying a …

Ingenious Arguments Or A Serious Constitutional Problem? A Comment On Professor Epstein's Paper, Philip A. Hamburger

Faculty Scholarship

In his observations about IRBs, Professor Richard Epstein makes persuasive arguments about the dangerous reach of the IRB laws, but he prefaces this policy analysis with a brief excursus into constitutional law that requires some comment. His view is that the constitutional debate over IRBs arises not so much from a substantial constitutional problem as from “ingenious arguments.” Yet this conclusion rests on mistaken assumptions – both about the IRB laws and about the constitutional objections – and because so much is at stake in the constitutional question, it is necessary to point out the inaccuracies.

The first set of …

China's Courts: Restricted Reform, Benjamin L. Liebman

Faculty Scholarship

Recent developments in China’s courts reflect a paradox largely avoided in literature on the subject: Can China’s courts play an effective role in a non-democratic governmental system? Changes to courts’ formal authority have been limited, courts still struggle to address basic impediments to serving as fair adjudicators of disputes, and courts continue to be subject to Communist Party oversight. Courts have also confronted new challenges, in particular pressure from media reports and popular protests. At the same time, however, the Party-state has permitted, and at times encouraged, both significant ground-up development of the courts and expanded use of the courts …

Hidden Foreign Aid, David Pozen

Faculty Scholarship

Few issues in global politics are as contentious as foreign aid – how much rich countries should give, in what ways, to whom. For years, it has been a commonplace that U.S. policies are stingy. The Organization for Economic Cooperation and Development (OECD) routinely ranks the United States far behind its industrialized peers in official development assistance (ODA), measured as a percentage of gross national income (GNI). An endless parade of critics has implored the government to do more; some suggest that the Bush Administration's support for the Monterrey Consensus, which sets a goal of increasing assistance to 0.7% of …

Bankruptcy Reform And The "Sweat Box" Of Credit Card Debt, Ronald J. Mann

Faculty Scholarship

Those that backed the 2005 bankruptcy reform law argued that it would protect creditors from consumer abuse and lack of financial responsibility. The substantial increase in the number of bankruptcies over the last decade combined with the perception of systemwide abuse apparently convinced legislators from both political parties that the backers had a point. Thus, Congress enacted amendments to the Bankruptcy Code that – if effective – would fundamentally change the core policies underlying the consumer bankruptcy system in this country. The rhetoric surrounding the reform debates pressed the idea that if borrowers had to repay more of their debts, …

Battle Of The Branches: The Separation Of Powers Doctrine In State Education Funding Suits, Sarah Seo

Faculty Scholarship

What is the scope of judicial power to enforce positive rights, such as the right to education? This Note analyzes litigation outcomes in state education finance lawsuits to examine how state courts exercise their authority within the limits of the separation of powers doctrine. The Note argues that practical, non-legal factors play an important role in a judge's decision to grant remedies addressing unconstitutional legislative inaction to provide an adequate public education. In conclusion, the Note discusses the efficacy of education litigation in light of the judicial s jurisdictional limits, as well as the realities of state politics.

Panel One: Lessons Learned: Gender Analyses Of Past Policies And Practices: Introduction, Suzanne B. Goldberg

Faculty Scholarship

Hello. I'm Suzanne Goldberg. I am pleased to welcome you to the first of two afternoon panels as part of the Women's Rights Law Reporter Symposium, "Lessons Learned: Gender Analyses of Past Policies and Practices." Thank you to Dr. Enarson for the wonderful opening to our conversation today. She has inspired us to think about broadening our analytic lens by foregrounding questions of gender in our consideration of disasters and disaster relief.

To Condone Or Condemn? Regional Enforcement Actions In The Absence Of Security Council Authorization, Monica Hakimi

Faculty Scholarship

The U.N. Charter establishes that regional arrangements may not take enforcement actions without authorization from the Security Council. Yet the international community does not always enforce this Charter rule. Major international actors repeatedly tolerate deviations from it even as they assert that it allows no exceptions. This Article examines that practice, arguing that two different legal systems govern enforcement actions taken by regional arrangements. One system is reflected in the Charter text and publicly endorsed by major international actors. The second, more nebulous system is based on expectations and demands in the absence of Security Council authorization. Under this second …

Introduction To The Symposium Issue On Alternative Dispute Resolution Strategies In End-Of-Life Decisions, Carol B. Liebman

Faculty Scholarship

At about 8:30 p.m. on a spring evening approximately twenty-five years ago when I was living in Newton, Massachusetts, our telephone rang. It was the emergency judge on duty that week asking me to go to a nearby suburban hospital to represent a sixty-eight-year-old woman whom I'll call Mrs. P. She had been hospitalized for heart failure and was refusing treatment, saying that she wanted to die with dignity.

Mrs. P and her husband had traveled to Boston from her home, a small town in New York about five hours away, to meet their newest grandchild. When I arrived at …

In Memoriam: Clark Byse, Stephen G. Breyer, Elena Kagan, Andrew L. Kaufman, Todd D. Rakoff, Peter L. Strauss, Richard K. Willard

Faculty Scholarship

The editors of the Harvard Law Review respectfully dedicate this issue to Professor Clark Byse.

International Antitrust Negotiations And The False Hope Of The Wto, Anu Bradford

Faculty Scholarship

Multinational corporations ("MNCs") operate today in an increasingly open global trade environment. While tariff barriers have collapsed dramatically, several states and numerous scholars have raised concerns that the benefits of trade liberalization are undermined by various non-tariff barriers ("NTBs") to trade, including the anticompetitive business practices of private enterprise. As a result, demands to link trade and antitrust policies more closely by extending the coverage of the World Trade Organization ("WTO") to incorporate antitrust law have gathered momentum over the last decade.

Most advocates of a WTO antitrust agreement base their normative claims on largely intuitive assumptions about the necessity …

Tax Expenditures As Foreign Aid, David E. Pozen

Faculty Scholarship

Few issues in global politics are as contentious as foreign aid – how much rich countries should give, in what ways, to whom. For years, it has been a commonplace that U.S. policies are stingy. The Organization for Economic Cooperation and Development (OECD) routinely ranks the United States far behind its industrialized peers in official development assistance (ODA), measured as a percentage of gross national income (GNI). An endless parade of critics has implored the government to do more; some suggest that the Bush Administration's support for the Monterrey Consensus, which sets a goal of increasing assistance to 0.7% of …

Just Until Payday, Ronald J. Mann, Jim Hawkins

Faculty Scholarship

The growth of payday lending markets during the last fifteen years has been the focus of substantial regulatory attention both in the United States and abroad, producing a dizzying array of initiatives by federal and state policymakers. Those initiatives have had conflicting purposes – some have sought to remove barriers to entry while others have sought to impose limits on the business. As is often the case in banking markets, the resulting patchwork of federal and state laws poses a problem when one state is able to dictate the practices of a national industry. For most of this industry's life, …

Regime Theory, Anu Bradford

Faculty Scholarship

Regime theory is an approach within international relations theory, a sub-discipline of political science, which seeks to explain the occurrence of co-operation among States by focusing on the role that regimes play in mitigating international anarchy and overcoming various collective action problems among States (International Relations, Principal Theories; State; see also Co-operation, International Law of). Different schools of thought within international relations have emerged, and various analytical approaches exist within the regime theory itself (see Sec. F.3 below). However, typically regime theory is associated with neoliberal institutionalism that builds on a premise that regimes are central in facilitating international co-operation …

The Practice Of Value – Reply, Joseph Raz

Faculty Scholarship

The privilege of having three sets of extensive and hard-hitting comments on one's work is as welcome as it is rare, and especially so on this occasion as the lectures were, for me, but the first (well, not entirely first) stab at a subject I hope to explore at greater length. The reflections that follow will respond to some of the criticisms, but will not be a point by point reply. I will use the occasion to clarify some obscurities in the lectures, and to contrast my view with some of my critics' own positions. I will proceed thematically, starting …

New Frameworks For Racial Equality In The Criminal Law, Jeffery Fagan, Mukul Bakhshi

Faculty Scholarship

This Symposium, " Pursuing Racial Fairness in the Administration of Justice: Twenty Years After McClesky v. Kemp," was conceived and inspired by Theodore Shaw, Director-Counsel and President of the NAACP Legal Defense and Educational Fund, Inc. Ted Shaw and his staff worked with Columbia Law School Professor Jeffrey Fagan to recruit an outstanding group of scholars and activists who met on March 2-3, 2007 to hear and comment on the articles appearing in this Symposium. In addition to the authors whose work appears in this issue, many others made important contributions to the Symposium through their commentaries and presentations. These …

Survey Of Climate Change Litigation, Michael B. Gerrard

Faculty Scholarship

Approximately 35 lawsuits have been filed in the United States concerning global climate change, together with several administrative proceedings and officially threatened actions. About half of them have led to judicial decisions, and several of those are under appeal; most of the rest are pending.

Much attention has deservedly gone to the U.S. Supreme Court’s decision in Massachusetts v. the EPA, but that is only the tip of the figurative iceberg; and unlike most of the real ones, it is growing rather than melting.

This article surveys U.S. climate change litigation. The lawsuits can be broadly divided between those …

Transparency And Determinacy In Common Law Adjudication: A Philosophical Defense Of Explanatory Economic Analysis, Jody S. Kraus

Faculty Scholarship

Explanatory economic analysis of the common law has long been subject to deep philosophical skepticism for two reasons. First, common law decisions appear to be cast in the language of deontic morality, not the consequentialist language of efficiency. For this reason, philosophers have claimed that explanatory economic analysis cannot satisfy the transparency criterion, which holds that a legal theory's explanation must provide a plausible account of the relationship between the reasoning it claims judges actually use to decide cases and the express reasoning judges provide in their opinions. Philosophers have doubted that the economic analysis has a plausible account of …