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Full-Text Articles in Law

Do Legal Origins Predict Legal Substance?, Anu Bradford, Yun-Chien Chang, Adam S. Chilton, Nuno Garoupa Jan 2020

Do Legal Origins Predict Legal Substance?, Anu Bradford, Yun-Chien Chang, Adam S. Chilton, Nuno Garoupa

Faculty Scholarship

There is a large literature in economics and law suggesting that countries’ legal origins – whether a country’s legal regime was based on British common law or German, French, or Nordic civil law – profoundly impact a range of outcomes. However, the exact relationship between legal origins and legal substance has been disputed in the literature, and this relationship has not been fully explored with nuanced legal coding. We revisit this debate while leveraging extensive novel cross-country datasets that provide detailed coding of two areas of laws: property and antitrust. We find that having shared legal origins strongly predicts whether countries ...


Principles Of Home Rule For The Twenty-First Century, Richard Briffault, Nestor M. Davidson, Paul A. Diller, Sarah Fox, Laurie Reynolds, Erin A. Scharff, Richard Schragger, Rick Su Jan 2020

Principles Of Home Rule For The Twenty-First Century, Richard Briffault, Nestor M. Davidson, Paul A. Diller, Sarah Fox, Laurie Reynolds, Erin A. Scharff, Richard Schragger, Rick Su

Faculty Scholarship

The National League of Cities’ “Principles of Home Rule for the Twenty-First Century” updates the American Municipal Association’s 1953 “Model Constitutional Provisions for Municipal Home Rule.” The AMA approach was widely adopted, but those provisions are now over 65 years old and intervening social, demographic, economic, and political changes necessitates a new approach to the legal structure of state-local relations. The NLC’s approach is organized around four basic principles, which are cashed-out in a model constitutional home rule provision, with commentary. The first principle states that a state’s law of home rule should provide local governments the ...


Petition For Rulemaking On Short And Distort, John C. Coffee Jr., Joshua Mitts, James D. Cox, Peter Molk, Edward Greene, Randall S. Thomas, Meyer-Eisenberg, Robert B. Thompson, Colleen Honigsberg, Andrew Verstein, Donald C. Langevoort, Charles K. Whitehead Jan 2020

Petition For Rulemaking On Short And Distort, John C. Coffee Jr., Joshua Mitts, James D. Cox, Peter Molk, Edward Greene, Randall S. Thomas, Meyer-Eisenberg, Robert B. Thompson, Colleen Honigsberg, Andrew Verstein, Donald C. Langevoort, Charles K. Whitehead

Faculty Scholarship

Today, some hedge funds attack public companies for the sole purpose of inducing a short-lived panic which they can exploit for profit. This sort of market manipulation harms average investors who entrust financial markets with their retirement savings. While short selling serves a critical function in the capital markets, some short sellers disseminate negative opinion about a company, inducing a panic and sharp decline in the stock price, and rapidly close that position for a profit prior to the price partially or fully rebounding. We urge the SEC to enact two rules which will discourage manipulative short selling. The petition ...


Bankruptcy’S Role In The Covid-19 Crisis, Edward R. Morrison, Andrea C. Saavedra Jan 2020

Bankruptcy’S Role In The Covid-19 Crisis, Edward R. Morrison, Andrea C. Saavedra

Faculty Scholarship

Policymakers have minimized the role of bankruptcy law in mitigating the financial fallout from COVID-19. Scholars too are unsure about the merits of bankruptcy, especially Chapter 11, in resolving business distress. We argue that Chapter 11 complements current stimulus policies for large corporations, such as the airlines, and that Treasury should consider making it a precondition for receiving government-backed financing. Chapter 11 offers a flexible, speedy, and crisis-tested tool for preserving businesses, financing them with government funds (if necessary), and ensuring that the costs of distress are borne primarily by investors, not taxpayers. Chapter 11 saves businesses and employment, not ...


How To Help Small Businesses Survive Covid-19, Todd Baker, Kathryn Judge Jan 2020

How To Help Small Businesses Survive Covid-19, Todd Baker, Kathryn Judge

Faculty Scholarship

Small businesses are among the hardest hit by the COVID-19 crisis. Many are shuttered, and far more face cash flow constraints, raising questions about just how many will survive this recession. The government has responded with a critical forgivable loan program, but for many of these businesses, this program alone will not provide the cash they need to retain workers, pay rent, and help their business come back to life when Americans are no longer sheltering in place. This essay calls on regulators to find new and creative ways to work with existing intermediaries, including banks and online lenders, who ...


The Covid-19 Pandemic And Business Law: A Series Of Posts From The Oxford Business Law Blog, Gert-Jan Boon, Markus K. Brunnermeier, Horst Eidenmueller, Luca Enriques, Aurelio Gurrea-Martínez, Kathryn Judge, Jean-Pierre Landau, Marco Pagano, Ricardo Reis, Kristin Van Zwieten Jan 2020

The Covid-19 Pandemic And Business Law: A Series Of Posts From The Oxford Business Law Blog, Gert-Jan Boon, Markus K. Brunnermeier, Horst Eidenmueller, Luca Enriques, Aurelio Gurrea-Martínez, Kathryn Judge, Jean-Pierre Landau, Marco Pagano, Ricardo Reis, Kristin Van Zwieten

Faculty Scholarship

The COVID-19 Pandemic is the biggest challenge for the world since World War Two, warned UN Secretary General, António Guterres, on 1 April 2020. Millions of lives may be lost. The threat to our livelihoods is extreme as well. Job losses worldwide may exceed 25 million.

Legal systems are under extreme stress too. Contracts are disrupted, judicial services suspended, and insolvency procedures tested. Quarantine regulations threaten constitutional liberties. However, laws can also be a powerful tool to contain the effects of the pandemic on our lives and reduce its economic fallout. To achieve this goal, rules designed for normal times ...


Covid-19 As A Force Majeure In Corporate Transactions, Matthew Jennejohn, Julian Nyarko, Eric L. Talley Jan 2020

Covid-19 As A Force Majeure In Corporate Transactions, Matthew Jennejohn, Julian Nyarko, Eric L. Talley

Faculty Scholarship

This paper surveys the use of pandemic-related provisions in Material Adverse Effects ("MAE") provisions in a large data set of publicly disclosed M&A transactions spanning the years 2003-2020. We document a trend towards greater use of such provisions, taking off particularly after the H1N1 crisis in 2009, and spiking again in late 2019 and early 2020. These terms are invariably located in the exclusions/carve-outs to the MAE, and they are overwhelmingly accompanied by "disproportionate effects" language that tends to dampen the effect of the carve out. There is little discernible statistical relationship between the inclusion of a pandemic-related carve-out and the inclusion of a reverse termination fee ("RTF") granting optionality to the buyer; but when an RTF is present, its magnitude tends to be smaller in the absence of any pandemic-specific carve-out, suggesting some degree of observational complementarity between these terms.


On Trust, Law, And Expecting The Worst, Elizabeth F. Emens Jan 2020

On Trust, Law, And Expecting The Worst, Elizabeth F. Emens

Faculty Scholarship

On Trust, Law, and Expecting the Worst, 133 Harv. L. Rev. 1963 (2020) (reviewing Jill Elaine Hasday, Intimate Lies and the Law (2019).


Race And Reasonableness In Police Killings, Jeffrey A. Fagan, Alexis D. Campbell Jan 2020

Race And Reasonableness In Police Killings, Jeffrey A. Fagan, Alexis D. Campbell

Faculty Scholarship

Police officers in the United States have killed over 1000 civilians each year since 2013. The constitutional landscape that regulates these encounters defaults to the judgments of the reasonable police officer at the time of a civilian encounter based on the officer’s assessment of whether threats to their safety or the safety of others requires deadly force. As many of these killings have begun to occur under similar circumstances, scholars have renewed a contentious debate on whether police disproportionately use deadly force against African Americans and other nonwhite civilians and whether such killings reflect racial bias. We analyze data ...


Criminal Deterrence: A Review Of The Missing Literature, Alex Raskolnikov Jan 2020

Criminal Deterrence: A Review Of The Missing Literature, Alex Raskolnikov

Faculty Scholarship

This review of the criminal deterrence literature focuses on the questions that are largely missing from many recent, excellent, comprehensive reviews of that literature, and from the literature itself. By “missing” I mean, first, questions that criminal deterrence scholars have ignored either completely or to a large extent. These questions range from fundamental (the distributional analysis of the criminal justice system), to those hidden in plain sight (economic analysis of misdemeanors), to those that are well-known yet mostly overlooked (the role of positive incentives, offender’s mental state, and celerity of punishment). I also use “missing” to refer to the ...


Nascent Competitors, C. Scott Hemphill, Tim Wu Jan 2020

Nascent Competitors, C. Scott Hemphill, Tim Wu

Faculty Scholarship

A nascent competitor is a firm whose prospective innovation represents a serious threat to an incumbent. Protecting such competition is a critical mission for antitrust law, given the outsized role of unproven outsiders as innovators and the uniquely potent threat they often pose to powerful entrenched firms

In this Article, we identify nascent competition as a distinct analytical category and outline a program of antitrust enforcement to protect it. We make the case for enforcement even where the ultimate competitive significance of the target is uncertain, and explain why a contrary view is mistaken as a matter of policy and ...


Judicial Credibility, Bert I. Huang Jan 2020

Judicial Credibility, Bert I. Huang

Faculty Scholarship

Do people believe a federal court when it rules against the government? And does such judicial credibility depend on the perceived political affiliation of the judge? This study presents a survey experiment addressing these questions, based on a set of recent cases in which both a judge appointed by President George W. Bush and a judge appointed by President Bill Clinton declared the same Trump Administration action to be unlawful. The findings offer evidence that, in a politically salient case, the partisan identification of the judge – here, as a “Bush judge” or “Clinton judge” – can influence the credibility of judicial ...


Innovation Versus Encrustation: Agency Costs In Contract Reproduction, Stephen J. Choi, Mitu Gulati, Robert E. Scott Jan 2020

Innovation Versus Encrustation: Agency Costs In Contract Reproduction, Stephen J. Choi, Mitu Gulati, Robert E. Scott

Faculty Scholarship

This article studies the impact of exogenous legal change on whether and how lawyers across four different deal types revise their contracts’ governing law clauses in order to solve the problem that the legal change created. The governing law clause is present in practically every contract across a wide range of industries and, in particular, it appears in deals as disparate as private equity M&A transactions and sovereign bond issuances. Properly drafted, the clause increases the ex ante economic value of the contract to both parties by reducing uncertainty and litigation risk. We posit that different levels of agency ...


How The Administrative State Got To This Challenging Place, Peter L. Strauss Jan 2020

How The Administrative State Got To This Challenging Place, Peter L. Strauss

Faculty Scholarship

This essay has been written to set the context for a future issue of Daedalus, the quarterly of the American Academy of Arts and Sciences, addressing the prospects of American administrative law in the Twenty-first Century. It recounts the growth of American government over the centuries since its founding, in response to the profound changes in the technology, economy, and scientific understandings it must deal with, under a Constitution written for the governance of a dispersed agrarian population operating with hand tools in a localized economy. It then suggests profound challenges of the present day facing administrative law’s development ...


Constitutional War Powers In World War I: Charles Evans Hughes And The Power To Wage War Successfully, Matthew C. Waxman Jan 2020

Constitutional War Powers In World War I: Charles Evans Hughes And The Power To Wage War Successfully, Matthew C. Waxman

Faculty Scholarship

On September 5, 1917, at the height of American participation in the Great War, Charles Evans Hughes famously argued that “the power to wage war is the power to wage war successfully.” This moment and those words were a collision between the onset of “total war,” Lochner-era jurisprudence, and cautious Progressive-era administrative development. This article tells the story of Hughes’s statement – including what he meant at the time and how he wrestled with some difficult questions that flowed from it. The article then concludes with some reasons why the story remains important today.


The Curse Of Bigness: New Deal Supplement, Tim Wu Jan 2020

The Curse Of Bigness: New Deal Supplement, Tim Wu

Faculty Scholarship

This is a supplement to the book, The Curse of Bigness: Antitrust in the New Gilded Age. It covers the years between 1920 - 1945, with a focus on the New Deal, and represents material left out of the original book.

It is meant to be read together with the larger volume, but can also be read separately.


Floors And Ceilings In International Copyright Treaties (Berne/Trips/Wct Minima And Maxima), Jane C. Ginsburg Jan 2020

Floors And Ceilings In International Copyright Treaties (Berne/Trips/Wct Minima And Maxima), Jane C. Ginsburg

Faculty Scholarship

This Comment addresses “floors” – minimum substantive international protections, and “ceilings” – maximum substantive international protections, set out in the Berne Convention and subsequent multilateral copyright accords. While much scholarship has addressed Berne minima, the “maxima” have generally received less attention. This Comment first describes the general structure of the Berne Convention, TRIPS and WCT regarding these contours, and then analyzes their application to the recent “press publishers’ right” promulgated in the 2019 EU Digital Single Market Directive.

Within the universe of multilateral copyright obligations, the Berne maxima (prohibition of protection for facts and news of the day), buttressed by the TRIPS ...


Fair Use Factor Four Revisited: Valuing The "Value Of The Copyrighted Work" – Essay, Jane C. Ginsburg Jan 2020

Fair Use Factor Four Revisited: Valuing The "Value Of The Copyrighted Work" – Essay, Jane C. Ginsburg

Faculty Scholarship

Recent caselaw has restored the prominence of the fourth statutory factor – “the effect of the use upon the market for or value of the copyrighted work” – in the fair use analysis. The revitalization of the inquiry should also occasion renewed reflection on its meaning. As digital media bring to the fore new or previously under-examined kinds of harm, courts not only need to continue refining their appreciation of a work’s markets. They must also expand their analyses beyond the traditional inquiry into whether the challenged use substitutes for an actual or potential market for the work. Courts should acknowledge ...


A United States Perspective On Digital Single Market Directive Art. 17, Jane C. Ginsburg Jan 2020

A United States Perspective On Digital Single Market Directive Art. 17, Jane C. Ginsburg

Faculty Scholarship

To a US appraiser, article 17 of the Digital Single Market Directive suggests the EU has learned from American mistakes (and from its own) in the allocation of internet intermediaries’ liability for hosting and communicating user-posted content. Before the DSM Directive, art. 14 of the 2000 eCommerce Directive set out a notice-and-takedown system very similar to the regime provided in 17 U.S.C. section 512(c). Both regimes replaced the normal copyright default, which requires authorization to exploit works, with a limitation on the liability of service providers who complied with statutory prerequisites. Because the limitation ensured that service ...


The Future Of Disclosure: Esg, Common Ownership, And Systematic Risk, John C. Coffee Jr. Jan 2020

The Future Of Disclosure: Esg, Common Ownership, And Systematic Risk, John C. Coffee Jr.

Faculty Scholarship

The U.S. securities markets have recently undergone (or are undergoing) three fundamental transitions: (1) institutionalization (with the result that institutional investors now dominate both trading and stock ownership); (2) extraordinary ownership concentration (with the consequence that the three largest U.S. institutional investors now hold 20% and vote 25% of the shares in S&P 500 companies); and (3) the introduction of ESG disclosures (which process has been driven in the U.S. by pressure from large institutional investors). In light of these transitions, how should disclosure policy change? Do institutions and retail investors have the same or different disclosure needs? Why ...


Foreign Contracts And U.S. Copyright Termination Rights: What Law Applies? – Comment, Jane C. Ginsburg Jan 2020

Foreign Contracts And U.S. Copyright Termination Rights: What Law Applies? – Comment, Jane C. Ginsburg

Faculty Scholarship

The U.S. Copyright Act gives authors the right to terminate assignments of copyrights in works other than works for hire executed on or after 1 January 1978 after 35 years, and to do so notwithstanding any agreement to the contrary. Given that agreements which are subject to the laws of other countries can assign U.S. copyrights, and purport to do so in perpetuity, U.S. law’s preclusion of agreements contrary to the author’s right to exercise her termination right can give rise to a difficult choice of law issue. Two recent cases which came before courts ...


Legitimate Interpretation – Or Legitimate Adjudication?, Thomas W. Merrill Jan 2020

Legitimate Interpretation – Or Legitimate Adjudication?, Thomas W. Merrill

Faculty Scholarship

Current debate about the legitimacy of lawmaking by courts focuses on what constitutes legitimate interpretation. The debate has reached an impasse in that originalism and textualism appear to have the stronger case as a matter of theory while living constitutionalism and dynamic interpretation provide much account of actual practice. This Article argues that if we refocus the debate by asking what constitutes legitimate adjudication, as determined by the social practice of the parties and their lawyers who take part in adjudication, it is possible to develop an account of legitimacy that produces a much better fit between theory and practice ...


Distributional Arguments, In Reverse, Alex Raskolnikov Jan 2020

Distributional Arguments, In Reverse, Alex Raskolnikov

Faculty Scholarship

What should the government do about the distribution of resources and outcomes in the society? Two arguments have shaped academic debates about this question for several decades. The first argument states that economic regulation should focus on efficiency alone, leaving distributional considerations for the tax-and-transfer system. The second argument objects to government assistance for people unintentionally harmed by legal reforms. Taken together, the two arguments impose major restrictions on the range of possible distributional policies.

This Article contends that a growing body of research in the economics of trade, immigration, industrial organization, labor, and environmental regulation reveals that the core ...


War Powers: Congress, The President, And The Courts – A Model Casebook Section, Stephen M. Griffin, Matthew C. Waxman Jan 2020

War Powers: Congress, The President, And The Courts – A Model Casebook Section, Stephen M. Griffin, Matthew C. Waxman

Faculty Scholarship

This model casebook section is concerned with the constitutional law of war powers as developed by the executive and legislative branches, with a limited look at relevant statutes and federal court cases. It is intended for use in Constitutional Law I classes that cover separation of powers. It could also be used for courses in National Security Law or Foreign Relations Law, or for graduate courses in U.S. foreign policy. This is designed to be the reading for one to two classes, and it can supplement or replace standard casebook sections on war powers that are shorter and offer ...


Restructuring Vs. Bankruptcy, Jason Roderick Donaldson, Edward R. Morrison, Giorgia Piacentino, Xiaobo Yu Jan 2020

Restructuring Vs. Bankruptcy, Jason Roderick Donaldson, Edward R. Morrison, Giorgia Piacentino, Xiaobo Yu

Faculty Scholarship

We develop a model of a firm in financial distress. Distress can be mitigated by filing for bankruptcy, which is costly, or preempted by restructuring, which is impeded by a collective action problem. We find that bankruptcy and restructuring are complements, not substitutes: Reducing bankruptcy costs facilitates restructuring, rather than crowding it out. And so does making bankruptcy more debtor-friendly, under a condition that seems likely to hold now in the United States. The model gives new perspectives on current relief policies (e.g., subsidized loans to firms in bankruptcy) and on long-standing legal debates (e.g., the efficiency of ...


What Do Lawyers Contribute To Law & Economics?, Robert E. Scott, George G. Triantis Jan 2020

What Do Lawyers Contribute To Law & Economics?, Robert E. Scott, George G. Triantis

Faculty Scholarship

The law and economics movement has transformed the analysis of private law in the United States and increasingly around the world. As the field developed from 1970 to the early 2000s, scholars have developed countless insights about the operation and effects of law and legal institutions. Throughout this period, the discipline of law and economics has benefited from a partnership among trained economists and academic lawyers. Yet, the tools that are used derive primarily from economics and not law. A logical question thus demands attention: what role do academic lawyers play in law and economics scholarship? In this Essay, we ...


Why The Fed Should Issue A Policy Framework For Credit Policy, Kathryn Judge Jan 2020

Why The Fed Should Issue A Policy Framework For Credit Policy, Kathryn Judge

Faculty Scholarship

The Federal Reserve has long used policy frameworks to both explain and inform its policymaking. These policy frameworks typically explain what the Fed is seeking to achieve in a given domain and how it plans to achieve its desired aims. Two prominent examples are the Fed’s use of Bagehot’s dictum when acting as a lender of last resort and its monetary policy framework issued in 2012 and revised in 2020. In both instances, the framework provides a foundation for informed debate among Fed policymakers, Congress, and the public, enhancing both efficacy and accountability. Since the onset of the ...


How Federalism Built The Fbi, Sustained Local Police, And Left Out The States, Daniel C. Richman, Sarah Seo Jan 2020

How Federalism Built The Fbi, Sustained Local Police, And Left Out The States, Daniel C. Richman, Sarah Seo

Faculty Scholarship

This Article examines the endurance of police localism amid the improbable growth of the FBI in the early twentieth century when the prospect of a centralized law enforcement agency was anathema to the ideals of American democracy. It argues that doctrinal accounts of federalism do not explain these paradoxical developments. By analyzing how the Bureau made itself indispensable to local police departments rather than encroaching on their turf, the Article elucidates an operational, or collaborative, federalism that not only enlarged the Bureau’s capacity and authority but also strengthened local autonomy at the expense of the states. Collaborative federalism is ...


Don't Go Chasing Waterfalls: Fiduciary Duties In Venture Capital Backed Startups, Sarath Sanga, Eric L. Talley Jan 2020

Don't Go Chasing Waterfalls: Fiduciary Duties In Venture Capital Backed Startups, Sarath Sanga, Eric L. Talley

Faculty Scholarship

Venture-capital-backed startups are often crucibles of conflict between common and preferred shareholders, particularly around exit decisions. Such conflicts are so common, in fact, that they have catalyzed an emergent judicial precedent – the Trados doctrine – that requires boards to prioritize common shareholders' interest and to treat preferred shareholders as contractual claimants. We evaluate the Trados doctrine using a model of startup governance that interacts capital structure, corporate governance, and liability rules. The nature and degree of inter-shareholder conflict turns not only on the relative rights and options of equity participants, but also on a firm's intrinsic value as well as ...


Global Investor-Director Survey On Climate Risk Management, Kristin Bresnahan, Jens Frankenreiter, Sophie L'Helias, Brea Hinricks, Nina Hodzic, Julian Nyarko, Sneha Pandya, Eric L. Talley Jan 2020

Global Investor-Director Survey On Climate Risk Management, Kristin Bresnahan, Jens Frankenreiter, Sophie L'Helias, Brea Hinricks, Nina Hodzic, Julian Nyarko, Sneha Pandya, Eric L. Talley

Faculty Scholarship

Changes in the global climate are having profound impacts on business operations, governance, and organizational management around the world. Boards of directors are searching for ways to account for these changes as they help guide their organizations, and investors are increasingly concerned about how these changes might impact their portfolios. This global survey, conducted by a team of researchers at the Ira M. Millstein Center for Global Markets and Corporate Ownership at Columbia Law School and experts at LeaderXXchange, seeks to understand how – if at all – institutional investors and board directors incorporate climate-related issues in their investment decision making and ...