Law Commons^™

Article Iii Double-Dipping: Proposition 8'S Sponsors, Blag, And The Government's Interest, Suzanne B. Goldberg

Faculty Scholarship

A major procedural question looms over the two marriage cases currently before the U.S. Supreme Court: Do the parties who seek to defend the marriage-recognition bans have standing to advance their views? The question arises because the governments that would have Article III standing, by virtue of their enforcement authority, are not defending their own laws. Instead, in Hollingsworth v. Perry, private parties are attempting to take up the state government’s mantle to de fend Proposition 8, which withdrew marriage rights from same-sex couples in California. And in United States v. Windsor, five members of the House of …

Science Heads List Of Candidate Debate Queries, Michael B. Gerrard

Faculty Scholarship

Policy on the environment, energy, and natural resources has seldom figured prominently in a presidential election, all the less so as time elapses since the first Earth Day. To judge by the more than twenty debates thus far in the current presidential campaign, it isn’t likely to be on top of the agenda this year. Although regulation itself has been featured in the campaign – recall the criticism of the new lightbulb efficiency standards and of the Solyndra bankruptcy, not to mention rejection of climate change science – broader topics in environmental policy have largely taken a back seat to …

Court Of Appeals Prop 8 Ruling: Treating Marriage As A License, Not A Sacrament, Katherine M. Franke

Faculty Scholarship

Rainbow flags and corsages were waving high in front of the Stonewall Inn in Greenwich Village last night. There’s much to celebrate about the 9th Circuit’s ruling issued yesterday confirming the lower court finding that Proposition 8 was unconstitutional. As I noted yesterday and Nan Hunter pointed out as well in her reading of the opinion, the reasoning used by the court minimizes the likelihood that the Supreme Court will take it up on appeal.

But what’s even more interesting about the opinion, now that I’ve had overnight to think about it, is the degree to which the 9th …

General Equilibrium Effects Of Prison On Crime: Evidence From International Comparisons, Justin Mccrary, Sarath Sanga

Faculty Scholarship

We compare crime and incarceration rates over time for the United States, Canada, and England and Wales, as well as for a small selection of comparison countries. Shifts in U.S. punishment policy led to a five-fold increase in the incarceration rate, while nearly every other country experienced only minor increases in incarceration. The large shifts in U.S. punishment policy do not seem to have caused commensurately large improvements in public safety.

The "Gateway" Problem In International Commercial Arbitration, George A. Bermann

Faculty Scholarship

Participants in international commercial arbitration have long recognized the need to maintain arbitration as an effective and therefore attractive alternative to litigation, while still ensuring that its use is predicated on the consent of the parties and that the resulting awards command respect. A priori, at least, all participants – parties, counsel, arbitrators, arbitral institutions – have an interest in ensuring that arbitration delivers the various advantages associated with it, notably speed, economy, informality, technical expertise, and avoidance of national fora, while producing awards that withstand judicial challenge and otherwise enjoy legitimacy.

National courts play a potentially important policing role …

From Private Violence To Mass Incarceration: Thinking Intersectionally About Women, Race, And Social Control, Kimberlé W. Crenshaw

Faculty Scholarship

The structural and political dimensions of gender violence and mass incarceration are linked in multiple ways. The myriad causes and consequences of mass incarceration discussed herein call for increased attention to the interface between the dynamics that constitute race, gender, and class power, as well as to the way these dynamics converge and rearticulate themselves within institutional settings to manufacture social punishment and human suffering. Beyond addressing the convergences between private and public power that constitute the intersectional dimensions of social control, this Article addresses political failures within the antiracism and antiviolence movements that may contribute to the legitimacy of …

The Obligatory Structure Of Copyright Law: Unbundling The Wrong Of Copying, Shyamkrishna Balganesh

Faculty Scholarship

Courts and scholars today understand and discuss the institution of copyright in wholly instrumental terms. Indeed, given the forms of analysis that they routinely employ, one might be forgiven for thinking that copyright is nothing more than a comprehensive government-administered scheme for encouraging the production of creative expression and is therefore quite legitimately the subject matter of public law. While this instrumental focus may have the beneficial effect of limiting copyright’s unending expansion, it also serves as a source of distraction. It directs attention away from the reality that copyright is fundamentally a creation of the law and is thus …

Property As Modularity, Thomas W. Merrill

Faculty Scholarship

Professor Henry Smith’s Property as the Law of Things urges a return to an older conception of property as rights with respect to things – and justifies this in terms of a very new conception of property based on modularity. Throughout, he highlights the importance of information costs in determining the structure of property law, starting with a baseline of in rem rights of exclusion supplemented by governance rules to deal with exceptional situations. I fully agree with his emphasis on the centrality of things in the law of property, the in rem nature of property, the primacy of exclusion …

Securities Class Actions Against Foreign Issuers, Merritt B. Fox

Faculty Scholarship

This Article addresses the fundamental question of whether, as a matter of good policy, it is ever appropriate that a foreign issuer be subject to the U.S. fraud-on-the-market private damages class action liability regime, and, if so, by what kinds of claimants and under what circumstances. The bulk of payouts under the U.S. securities laws arise out of fraud-on-the-market class actions – actions against issuers on behalf of secondary market purchasers of their shares for trading losses suffered as a result of issuer misstatements in violation of Rule 10b-5. In the first decade of this century, foreign issuers became frequent …

Arbitrability Trouble, George A. Bermann

Faculty Scholarship

The general notion of arbitrability is practically as old as arbitration itself, and yet it remains profoundly misunderstood, at least in U.S. arbitration law. For many – particularly outside the United States – arbitrability has a single and very precise meaning, signifying the legal capacity of a claim or dispute to be the subject of arbitration rather than litigation or, to borrow the language of the UNCITRAL Model Law and the New York Convention, signifying that a claim or dispute is “legally capable of being arbitrated.” By this understanding, a claim or dispute is “non-arbitrable” within a given legal system …

Ferc Order 1000 As A New Tool For Promoting Energy Efficiency And Demand Response, Shelley Welton, Michael B. Gerrard

Faculty Scholarship

In July 2011, the Federal Energy Regulatory Commission (FERC) issued Order No. 1000, the latest in a series of orders directed at improving federal transmission access, planning, and coordination.1 Order 1000 requires, for the first time, that electricity transmission providers engage in regionwide transmission planning, and further mandates that such planning consider how federal and state public policies affect transmission needs. Public utility transmission providers are now in the process of amending their operating tariffs to comply with this new order. It is therefore an important time for all those with an interest in the future of the electric grid …

Recent Developments Under State Environmental Quality Review Act, Michael B. Gerrard

Faculty Scholarship

When a litigant brings a lawsuit under New York’s State Environmental Quality Review Act (SEQRA), the odds of success have never been high. However, the cases decided in 2011 exhibiteda stark exception to this general rule: Project applicants who were frustrated by governmental delays or obstacles won six of the seven cases they brought under SEQRA.

The volume of SEQRA litigation continues to decline. In 2011 the courts decided 35 cases under SEQRA, the lowest number since this column began its annual survey in 1990. The second lowest was 37 in 2010; the third lowest was 45 in 2009. (Previously …

State Public Utility Commissions' Powers To Advance Energy Efficiency, Michael B. Gerrard

Faculty Scholarship

Improving energy efficiency is widely acknowledged as the most economical way to reduce greenhouse gas emissions and the other adverse environmental impacts of fossil fuel use. Indeed, efficiency measures often yield net cost savings over a fairly short period of time.

The United States lacks a comprehensive regulatory program for energy efficiency. The Environmental Protection Agency and the Department of Transportation set fuel economy standards for motor vehicles (and on Aug. 28, 2012, finalized a major tightening of those standards). The Department of Energy sets many appliance standards and administers certain grant and research programs. The Federal Energy Regulatory Commission …

Reverse Environmental Impact Analysis: Effect Of Climate Change On Projects, Michael B. Gerrard

Faculty Scholarship

Environmental impact statements (EISs) examine the effect of the proposed action – typically a construction project, but sometimes a government policy or other activity – on the environment. However, increasing attention is now devoted to looking in the other direction – at how changes in the environment might affect a project.

Reverse environmental impact analysis, as I will call it, has been with us for some time. For example, if a building is planned downwind of a smokestack or downstream of a contaminated groundwater plume, this effect of the outside world has long been considered. However, the emergence of scientific …

Dc Circuit Clears Path For Ghg Rules, But Politics Remain, Michael B. Gerrard

Faculty Scholarship

What may have been the most important environmental decision of 2012 dismissed numerous challenges to the rules issued by the U.S. Environmental Protection Agency (EPA) to control emissions of greenhouse gases (GHGs). While further legal battles are looming, the most serious remaining threats to EPA's program are in the political sphere.

This article describes the ruling in Coalition for Responsible Regulation v. EPA, forecasts EPA's next moves, and describes the battles still ahead for EPA.

The Environment In New York State, Michael B. Gerrard, Claire H. Woods

Faculty Scholarship

This article explores the environmental policy in New York State. Science is significant as a driver of environmental policy, but public opinion is even more important. The story of the New York State's water supply is dominated by the historic quest to supply water to New York City. The State Environmental Quality Review Act (SEQRA) has been the most fertile source of environmental litigation in New York State courts. New York's solid waste expenditures have soared as it has had to pay commercial landfills and incinerators to take waste that had previously been cheaply dumped at Fresh Kills. New York …

At Issue: Energy Efficiency, Michael B. Gerrard

Faculty Scholarship

Relatively simple measures, such as switching to more efficient lightbulbs and insulating commercial buildings, hold great promise in efforts to combat climate change. So what's the holdup?

Quasi-Property: Like, But Not Quite Property, Shyamkrishna Balganesh

Faculty Scholarship

Quasi-property interests refer to situations in which the law seeks to simulate the idea of exclusion, normally associated with property rights, through a relational liability regime, by focusing on the nature and circumstances of the interaction in question, which is thought to merit a highly circumscribed form of exclusion. In this Article, I unpack the analytical and normative bases of quasi-property interests, examine the primary triggering events that cause courts to invoke the category, and respond to potential objections to the recognition of quasi-property as an independent category of interests in the law.

The Uncertain Future Of "Hot News" Misappropriation After Barclays Capital V. Theflyonthewall.Com, Shyamkrishna Balganesh

Faculty Scholarship

In this Essay, I attempt to disaggregate the Second Circuit’s decision in Barclays Capital to show that while the court may have reached the right conclusion in the end (a position I have argued for previously), its reasoning to reach that conclusion is rather confusing, while at the same time a rich source of information about the future of hot news doctrine. At every stage of its analysis, the Second Circuit went to significant lengths to cabin the reach of the doctrine quite considerably, despite reiterating that it was not abrogating it altogether. In analyzing the opinion, I thus consider …

Virtue Ethics And Efficient Breach, Avery W. Katz

Faculty Scholarship

The concept of "efficient breach" – the idea that a contracting party should be encouraged to breach a contract and pay damages if doing so would be more efficient than performance – is probably the most influential concept in the economic analysis of contract law. It is certainly the most controversial. Efficient breach theory has been criticized from both within and without the economic approach, but its most prominent criticism is that it violates deontological ethics – that the beneficiary of a promise has a right to performance, so that breaching the promise wrongs the promisee.

This essay argues that …

Inter Arma Enim Non Silent Leges, Philip C. Bobbitt

Faculty Scholarship

There is good reason to think that law and war have nothing to do with one another, and this has certainly been so for most of the lifetime of mankind. Cicero's famous observation-silent enim leges inter arma – from which I take my title, was not a novel insight when uttered in 52 B.C. and in any case was not said in the context of war, but of a prosecution for murder in the aftermath of the Roman riots of that era between the partisans of the populares and optimates. Clausewitz, however, said much the same thing when he decried …

Navigating Eu Law And The Law Of International Arbitration, George A. Bermann

Faculty Scholarship

The European Union and international arbitration are two robust legal regimes that have managed to develop largely in accordance with their own respective “first principles,” and they have accordingly thrived. This article initially explains why that has been the case.

But the era of parallelism between the regimes has ended, and rather suddenly. This article identifies the two principal fronts on which tensions between EU law and international arbitration law have emerged. Interestingly, both commercial and investment arbitration are implicated.

A first front entails a conflict between the European Court of Justice's (ECJ's) expansive notions of EU public policy and …

Religion And Public Reasons: Making Laws And Evaluating Candidates, Kent Greenawalt

Faculty Scholarship

This essay concerns religious reasons: how these compare with public reasons, and their appropriate place in the politics and law of the United States. Although I focus primarily on arguments about what this place should be, sound normative answers about these questions are closely connected to certain descriptive facts and estimates about what does happen and what is possible.

I tackle three separate questions. The first is the place of religious reasons in the formation and justifications of positions about what laws should be made. The second inquiry involves the place of such reasons in judicial decisions. The third question …

Thoughts On Arbitrator Selection: Why My Father Was (Usually) A Good Choice, Robert H. Smit

Faculty Scholarship

Many of the letters, cards and emails of condolence that I received after my father, Professor Hans Smit, passed away last year were from lawyers who had appeared before my father, serving as arbitrator, in international arbitrations. Most said very nice things about my father, some over the top: “worthy of canonization,” “a force of nature,” “Odysseus,” an “icon.” Others were kind but more restrained (coming perhaps from attorneys whose clients fared less well before my father): “creative,” “indomitable,” “fair but scary.” One of my favorites, from a non-native English speaker, was even more neutral, describing my father simply as …

Introduction, Katherine M. Franke

Faculty Scholarship

Each year Columbia Law School’s Center for Gender Sexuality Law selects a scholar whose work has made an important impact on the study and practice of gender and/or sexuality law. For 2010 we selected Judith Butler, the Maxine Elliot Professor in the Departments of Rhetoric and Comparative Literature at the University of California, Berkeley. In March of 2010, we held a Symposium recognizing the multiple domains of theory and activism in which Butler’s mark has been profound, and oft times paradigm shifting.

Columbia Law School has the great fortune of having developed one of the deepest and most diverse faculties …

Microinsurance: A Case Study Of The Indian Rainfall Index Insurance Market, Xavier Giné, Lev Menand, Robert W. Townsend, James Vickery

Faculty Scholarship

Efforts have been made in India and other countries in recent years to develop formal insurance markets to improve diversification of weather-related income shocks. This article aims to survey the features of one of these markets, the Indian rainfall index insurance market. “Index insurance” refers to a contract whose payouts are linked to a publicly observable index; in this case, the index is cumulative rainfall recorded on a local rain gauge during different phases of the monsoon season. This form of insurance is now available at a retail level in many parts of India, although these markets are still in …

Sovereign Wealth Funds And Global Finance, Katharina Pistor

Faculty Scholarship

This chapter focuses on a number of specific sovereign wealth funds (SWFs) whose portfolios indicate strong interests in finance both in their home countries and abroad. It first reviews empirical evidence that shows SWFs having been major investors in Western financial intermediaries for decades. It then considers the organization and governance of SWFs, with particular emphasis on the three main schools of thought as well as the predictions one can derive from them vis-à-vis the behavior of individual actors in the global financial network: economic theories, economic sociology, and political economy. It also presents case studies that “test” these theories …

Experimentalist Governance, Charles F. Sabel, Jonathan Zeitlin

Faculty Scholarship

This article discusses the concept of the so-called experimentalist governance. It explains that the experimentalist architecture in regulation is well illustrated by the European Union Water Framework Directive (WFD) and its Common Implementation Strategy. The article suggests that experimentalism appears particularly well suited to transnational domains, where there is no overarching sovereign with the authority to set common goals even in theory, and where the diversity of local conditions and practices makes the adoption and enforcement of uniform fixed rules even less feasible than in domestic settings.

Arbitration In The Roberts Supreme Court, George A. Bermann

Faculty Scholarship

The Supreme Court’s most recent set of arbitration law rulings — Stolt-Nielsen, S.A. v. AnimalFeeds Int’l, Rent-A-Center West v. Jackson, and AT&T Mobility v. Concepcion — merits all the attention it has been receiving. Taken collectively, the three decisions evidence the powerful commitment of a Supreme Court majority to arbitration as an alternative form of dispute resolution — a commitment so strong as to override important consumer welfare interests. At a minimum, the trilogy erects substantial barriers to the conduct of class arbitration, a form of arbitration that consumer advocates regard as essential to protecting consumer welfare.

In …

The European Crisis And The Free Movement Of People, Anu Bradford

Faculty Scholarship

Established by the Treaty of Rome in 1957, the free movement of labour across the European Union is a fundamental right enjoyed by all EU citizens. It forms a core principle on which the notion of a prosperous, peaceful and integrated Europe rests.

Even so, Europeans have historically exercised their right to move freely across the EU far less than predicted due to linguistic and cultural barriers that have kept many Europeans tied to their national labour markets.