Law Commons^™

Agora: The South China Sea – Editors' Introduction, Lori Fisler Damrosch, Bernard H. Oxman

Faculty Scholarship

The disagreements among states bordering the South China Sea pose extraordinarily complex legal issues. Sovereignty over small islands that lie at some distance from the continental and insular coasts that surround the sea is contested. So are the maritime entitlements generated by these features. Notably, rocks that cannot sustain human habitation or economic life of their own generate no entitlement to an exclusive economic zone (EEZ) and continental shelf beyond a twelve-mile territorial sea, which may be the case for many of the disputed islands. Yet another series of questions relates to the delimitation of overlapping maritime entitlements, including the …

Staging The Family, Clare Huntington

Faculty Scholarship

For many critical aspects of family life, all the world truly is a stage. When a parent scolds a child on the playground, all eyes turn to watch and judge. When an executive’s wife hosts a work party, the guests are witness to traditional gender roles. And when two fathers attend a back-to-school night for their child, other parents take note of this relatively new family configuration. Family is popularly considered intimate and personal, but in reality much of family life is lived in the public eye.

These performances of family and familial roles do not simply communicate messages to …

Getting Ahead Of The Curve: Supporting Adaptation To Long-Term Climate Change And Short-Term Climate Variability Alike, Alexis Saba, Michela Biasutti, Michael B. Gerrard, David B. Lobell

Faculty Scholarship

The United Nations Framework Convention on Climate Change (UNFCCC) has been meeting since 1995, and in recent years, it has increasingly focused on facilitating and funding climate change adaptation in developing countries. Other sources of financing, from multilateral development banks to bilateral and multilateral agreements among countries, are also providing resources for adaptation. Simultaneously, climate scientists around the world are updating their forecasts on the nature of future climate change. This article seeks to examine the scope of funding available for climate change adaptation and how climate change forecasts are used to plan for and evaluate climate change adaptation. We …

Private Equity And Executive Compensation, Robert J. Jackson Jr.

Faculty Scholarship

After the financial crisis, Congress directed regulators to enact new rules on C EQ pay at public companies. The rules would address the possibility that directors of public conpani es put ranagers'interests ahead of shareholderswhen setting executive pay. Yet little is known about how CEOs are paid in companies whose directors have undivided loyalty to shareholders. These directors car be fbund in companies owned by private equity firms-the savvy investors long renowned for their ability to maximize shareholier value. this Artic. presents the first study of how CEO pay in companies owned by private equity firms differs from CEO pay …

Shallow Signals, Bert I. Huang

Faculty Scholarship

Whether in dodging taxes, violating copyrights, misstating corporate earnings, or just jaywalking, we often follow the lead of others in our choices to obey or to flout the law. Seeing others act illegally, we gather that a rule is weakly enforced or that its penalty is not serious. But we may be imitating by mistake: what others are doing might not be illegal – for them.

Whenever the law quietly permits some actors to act in a way that is usually forbidden, copycat misconduct may be erroneously inspired by the false appearance that "others are doing it too." The use …

"With Untired Spirits And Formal Constancy": Berne Compatibility Of Formal Declaratory Measures To Enhance Copyright Title-Searching, Jane C. Ginsburg

Faculty Scholarship

Formalities are back in fashion. Their acolytes fall into two camps, reflecting their different objectives. For formalities, which we shall define as conditions on the existence or enforcement of copyright, can divest authors of their rights, or instead enhance authors' exploitation of their works by alerting their audiences to the authors' claims. For one camp, formalities' confiscatory consequences, once perceived as barbaric, are to be celebrated. The more works from their authors' rights untimely ripped, cast into the public domain, or amputated in their enforcement, the better. Formalities can supply the cure for all copyright's ills, from over-inclusive subject matter, …

An Introduction To Climate Change Liability Litigation And A View To The Future, Michael B. Gerrard, Joseph A. Macdougald

Faculty Scholarship

This article discusses the advancement of climate change litigation. It explores two approaches to climate change litigation; the first is to use the federal regulatory apparatus and the second is to use the tort system. The article explores key questions in climate change litigation such as, who is responsible for deciding the appropriate level of harmful emissions? How should courts handle the long tail effects of climate change? What are the proper forums to litigate in? And, what is the role of the federal government in climate change litigation?

Accepting The Limits Of Tax Law And Economics, Alex Raskolnikov

Faculty Scholarship

This Article explores the limits of tax law and economics, attributing them to the unique complexity of the tax optimization problem. Designers of the optimal tax system must account for the impossibility of deterring socially undesirable behavior, provide for redistribution, and minimize social costs on the basis of assumptions that are laden with deeply contested value judgments, pervasive empirical uncertainty, or both. Given these challenges, it is hardly surprising that economic theory has a much weaker connection to the content of our tax laws and their enforcement than it does to the content and enforcement of many other legal regimes. …

A Conversation With Justice Ruth Bader Ginsburg, Ruth Bader Ginsburg, Gillian E. Metzger, Abbe Gluck

Faculty Scholarship

Professor Gillian Metzger: Katherine, thank you for that wonderful overview of all that the Justice has achieved and the history of Columbia Law School. And I want to apologize for those to whom I am showing my back, but this will allow us to have more of a conversation with the Justice.

Justice, thank you so much for being with us today. It is a real privilege for us to get to talk to you this way, and we know for the entire audience. You have had – as you have now heard (LAUGHS) – an amazing and just tremendously …

The Presumption Of Constitutionality And The Individual Mandate, Gillian E. Metzger, Trevor W. Morrison

Faculty Scholarship

Every American law student learns that there is a difference between a statute's meaning and its constitutionality. A given case might well present both issues, but law students are taught that the questions are distinct and that their resolution requires separate analyses. This is all for good reason: the distinction between statutory meaning and constitutional validity is both real and important. But it is not complete. Any approach to statutory interpretation depends on a view about the appropriate role of the judiciary (or other institutional interpreter) in our constitutional system; "[a]ny theory of statutory interpretation is at base a theory …

Administrative Constitutionalism, Gillian E. Metzger

Faculty Scholarship

The U.S. Food and Drug Administration adopts a rule requiring tobacco companies to include graphic images warning of the health risks associated with smoking, defending the rule at length against the claim it violates the First and Fifth Amendments. The Department of Education and the Department of Justice (DOJ) jointly issue guidance explaining how elementary and secondary schools can voluntarily consider race consistently with governing constitutional law. The Office of Legal Counsel (OLC) in DOJ issues a memorandum to the Attorney General concluding that the President had constitutional authority to commit U.S. forces as part of the NATO military campaign …

The Shale Oil And Gas Revolution, Hydraulic Fracturing, And Water Contamination: A Regulatory Strategy, Thomas W. Merrill, David M. Schizer

Faculty Scholarship

The United States has surpassed Russia as the world's top natural gas producer, and according to the world's most respected energy forecaster, the U.S. will also overtake Saudi Arabia as the largest oil producer by 2020. This surge in U.S. oil and gas production would have seemed wildly improbable a decade ago. It flows from a revolution in U.S. oil and gas production. Energy companies have learned to tap previously inaccessible oil and gas in shale and other impermeable (or "tight") rock formations. To do so, they use "hydraulic fracturing" ("fracturing" or "fracking"), pumping fluid into shale at high pressure …

Self-Defensive Force Against Cyber Attacks: Legal, Strategic And Political Dimensions, Matthew C. Waxman

Faculty Scholarship

When does a cyber attack (or threat of cyber attack) give rise to a right of self-defense – including armed self-defense – and when should it? By "cyber attack" I mean the use of malicious computer code or electronic signals to alter, disrupt, degrade or destroy computer systems or networks or the information or programs on them. It is widely believed that sophisticated cyber attacks could cause massive harm – whether to military capabilities, economic and financial systems, or social functioning – because of modern reliance on system interconnectivity, though it is highly contested how vulnerable the United States and …

State Hazard Mitigation Plans And Climate Change: Rating The States, Matthew Babcock

Sabin Center for Climate Change Law

Climate change is affecting and will continue to affect the frequency and severity of natural hazard events, a trend that is of increasing concern for emergency managers and hazard mitigation agencies across the United States. Proper response to these hazards will require preparation and planning. Unfortunately, states are not required to include analysis of climate change in their State Hazard Mitigation Plans, which leads to uneven treatment of the issue and missed opportunities for mitigation planning. This survey identifies those state plans that address climate change and climate-related issues in an accurate and helpful manner and those that do not. …

Fracking And Federalism Choice, Michael Burger

Sabin Center for Climate Change Law

In response to David B. Spence's "Federalism, Regulatory Lags, and the Political Economy of Energy Production," I offer a set of constructive challenges to his article. In Part I, I argue that fracking’s federalism-choice question has already been answered, and that but for the outdated and underjustified exemptions mentioned above, fracking is already under the jurisdiction of federal regulators. In Part II, I conduct an alternative federalism-choice analysis that adds to Professor Spence’s analysis in three ways. First, I balance his analysis by examining rationales commonly used to justify decentralization, rather than federalization, of environmental law. Second, I argue that …

Environmental Law/Environmental Literature, Michael Burger

Sabin Center for Climate Change Law

What, is truly "environmental" about environmental law? This Article is the first attempt to answer this question by integrating Law & Literature scholarship with the study of environmental law. I argue that competing narratives of nature and culture common to the American environmental imagination play a more significant role in environmental law and litigation than previously acknowledged. These competing narratives, communicated through a known set of environmental stories and tropes, are used by attorneys to establish, frame, narrate and argue their cases, and they are absorbed, reimagined, reframed and retold by judges in their written opinions, making environmental law a …

Discussion Of Climate Change-Related Water Impacts In Federal Environmental Impact Statements (Eiss), January-September 2012, Cathy Li

Sabin Center for Climate Change Law

Climate change and its predicted effect on precipitation, temperature, storm frequency and intensity, global sea levels, and numerous other factors will pose significant challenges for the maintenance and operations of built infrastructure. Climate change is predicted to exacerbate water-related issues, such as water supply shortages brought on by increasingly severe droughts and more frequent or intense flooding caused by extreme precipitation events. Executive Order 13514 and subsequent instructions from the Council on Environmental Quality (CEQ) have directed federal agencies to prepare for and adapt to the changing environment in which they will have to operate. The National Environmental Policy Act …

The (Re)Federalization Of Fracking Regulation, Michael Burger

Sabin Center for Climate Change Law

The purpose of this Article is to defend environmental law's federalism choices from the insinuation that they do not match fracking's environmental impacts and to demonstrate that fracking does indeed belong under the umbrella of federal law. The Article proceeds in four Parts. Part I establishes the federalism-choice analysis framework and applies it to both state and federal regulation of fracking. Part II buttresses the conclusion that federal regulation of potential impacts on underground drinking-water supplies is appropriate through a fresh and extensive examination of the statutory scheme and legislative history of SDWA. Part III offers further support for federal …

Carbon Capture And Storage Policy In China, Yan Gu

Sabin Center for Climate Change Law

This paper examines the current state of Carbon Capture, Utilization and Storage technology (CCUS) in China as well as the related climate change policy, laws, and initiatives that might be used to encourage the large-scale deployment of carbon sequestration in China. The paper is organized in six sections. Section I examines the overall status of CCUS development in China, including CCUS research activities and demonstration project deployment. Section II discusses the broader environment of national climate change policies issued by the State Council (namely the Central People’s Government) and how it accommodates CCUS development policy. Section III reviews China’s technology …

Health And Financial Fragility: Evidence From Car Crashes And Consumer Bankruptcy, Edward R. Morrison, Arpit Gupta, Lenora M. Olson, Lawrence Cook, Heather Keenan

Faculty Scholarship

This paper assesses the importance of adverse health shocks as triggers of bankruptcy filings. We view car crashes as a proxy for health shocks and draw on a large sample of police crash reports linked to hospital admission records and bankruptcy case files. We report two findings: (i) there is a strong positive correlation between an individual's pre-shock financial condition and his or her likelihood of suffering a health shock, an example of behavioral consistency; and (ii) after accounting for this simultaneity, we are unable to identify a causal effect of health shocks on bankruptcy filing rates. These findings emphasize …

Economics Of Bankruptcy – Introduction, Edward R. Morrison

Faculty Scholarship

This essay surveys important contributions to the economics of bankruptcy. It is an introductory chapter for a forthcoming volume (from Edward Elgar Press) that compiles the work of legal scholars as well as economists working in the field of corporate finance. The essay begins with the foundational theories of Baird, Jackson, and Rea and then collects scholarly work extending, testing, or revising those theories. At various points I identify questions that merit further study, particularly empirical testing.

"Give Us Free": Addressing Racial Disparities In Bail Determinations, Cynthia E. Jones

Scholarly Articles in Law Reviews & Journals

This article considers racial disparities that occur nationally in the bail determination process, due in large part to the lack of uniformity, resources, and information provided to officials in bail proceedings. It argues that the almost unbridled decision making power afforded to bail officials is often influenced by improper considerations such as the defendant's financial resources or the race of the defendant. As a result of these failures, the bail determination process has resulted not only in racial inequalities in bail and pretrial detention decisions, but also in the over-incarceration of pretrial defendants and the overcrowding of jails nationwide. The …

"I Am Ronald Cotton": Teaching Wrongful Convictions In A Criminal Law Class, Cynthia E. Jones

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Advocating For Equality, Stephen Wermiel

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Should Public Buildings Be Used For Worship, Stephen Wermiel

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Adaptive Clinical Teaching, Colleen F. Shanahan, Emily Benfer

Faculty Scholarship

Teaching is an exercise in adaptation and clinical legal teaching is no exception. Clinical teachers develop effective approaches through instinct, training, pedagogy, skill, and trial and error. Building on the trials, errors, and instincts of clinical teachers, this article offers a more intentional approach: "adaptive clinical teaching" (ACT). ACT is a structured method of guided analysis and reflection that applies to any clinical teaching situation, allowing a clinician to make her teaching choices based on as much knowledge and with as much intentionality as possible. ACT provides clinicians with an approach for new issues as they arise and builds a …

Educating The Invincibles: Strategies For Teaching The Millennial Generation In Law School, Emily Benfer, Colleen F. Shanahan

Faculty Scholarship

Each new generation of law students presents its own set of challenges for law teachers seeking to develop competent and committed members of the legal profession. This article aims to train legal educators to recognize their students' generational learning style and to deliver a tailored education that supports the development of skilled attorneys. To help legal educators better understand the newest generation of law students, this article explores the traits associated with the Millennial Generation of law students, including their perspective on themselves and others, on education and on work. It then provides detailed and specific strategies for teaching millennial …

Multilateral Environmental Agreements In The Wto: Silence Speaks Volumes, Henrik Horn, Petros C. Mavroidis

Faculty Scholarship

This study contributes to the debate concerning the appropriate role of multilateral environmental agreements (MEAs) in in WTO dispute settlement. Its distinguishing feature is that it seeks to address this relationship in light of the reason why the parties have chosen to separate their obligations into two bodies of law without providing an explicit nexus between them. The basic conclusion is that legislators’ silence concerning this relationship should speak volumes to WTO adjudicating bodies: MEAs should not be automatically understood as imposing legally binding obligations on WTO Members, but could be used as sources of factual information.

Agency Capitalism: Further Implications Of Equity Intermediation, Ronald J. Gilson, Jeffrey N. Gordon

Faculty Scholarship

This chapter continues our examination of the corporate law and governance implications of the fundamental shift in ownership structure of U.S. public corporations from the Berle-Means pattern of widely distributed shareholders to one of Agency Capitalism – the reconcentration of ownership in intermediary institutional investors as record holders for their beneficial owners. A Berle-Means ownership distribution provided the foundation for the agency cost orientation of modern corporate law and governance – the goal was to bridge the gap between the interests of managers and shareholders that dispersed shareholders could not do for themselves. The equity intermediation of the last 30 …

The Moral Significance Of Economic Life, Andrzej Rapaczynski

Faculty Scholarship

Much of the modern perception of the role of economic production in human life – whether on the Left or on the Right of the political spectrum – views it as an inferior, instrumental activity oriented toward self-preservation, self-interest, or profit, and thus as essentially distinct from the truly human action concerned with moral values, justice, and various forms of self-fulfillment. This widely shared worldview is rooted, on the one hand, in the Aristotelian tradition that sees labor as a badge of slavery, and freedom as lying in the domain of politics and pure (not technical) knowledge, and, on the …