Law Commons^™

Money That Costs Too Much: Regulating Financial Incentives, Kristen Underhill

Faculty Scholarship

Money may not corrupt. But should we worry if it corrodes? Legal scholars in a range of fields have expressed concern about “motivational crowding-out,” a process by which offering financial rewards for good behavior may undermine laudable social motivations, like professionalism or civic duty. Disquiet about the motivational impacts of incentives has now extended to health law, employment law, tax, torts, contracts, criminal law, property, and beyond. In some cases, the fear of crowding-out has inspired concrete opposition to innovative policies that marshal incentives to change individual behavior. But to date, our fears about crowding-out have been unfocused and amorphous; …

The Legitimacy Of Economic Sanctions As Countermeasures For Wrongful Acts, Lori Fisler Damrosch

Faculty Scholarship

This essay offers an installment of what would have been a continuing conversation with David D. Caron, a close colleague in the field of international law, on themes that engaged both of us across multiple phases of our intersecting careers. The issues are fundamental ones for both the theory and the practice of international law, involving such core concerns as how international law can be enforced in an international system that is not yet adequately equipped with institutions to determine the existence and consequences of violations or to impose sanctions against violators; and how to ensure that self-help enforcement measures …

Big Data And Discrimination, Talia B. Gillis, Jan L. Speiss

Faculty Scholarship

The ability to distinguish between people in setting the price of credit is often constrained by legal rules that aim to prevent discrimination. These legal requirements have developed focusing on human decision-making contexts, and so their effectiveness is challenged as pricing increasingly relies on intelligent algorithms that extract information from big data. In this Essay, we bring together existing legal requirements with the structure of machine-learning decision-making in order to identify tensions between old law and new methods and lay the ground for legal solutions. We argue that, while automated pricing rules provide increased transparency, their complexity also limits the …

Annual Review Of Developments Under Seqra, Michael B. Gerrard, Edward Mctiernan

Faculty Scholarship

The courts decided 46 cases under the State Environmental Quality Review Act (SEQRA) in 2018. However, the most important action under SEQRA was in the Legislature, followed by the state Department of Environmental Conservation (DEC).

The Single-Subject Rule: A State Constitutional Dilemma, Richard Briffault

Faculty Scholarship

Critics of the proliferation of omnibus legislation in Congress have pointed to the constitutions of the American states as providing an alternative, and potentially superior, model for lawmaking. Forty-three state constitutions include some sort of “single-subject” rule, that is, the requirement that each act of the legislature be limited to a single subject. Many of these provisions date back to the second quarter of the nineteenth century, and, collectively, they have been the subject of literally thousands of court decisions. Nor is the rule a relic from a bygone era; one recent study found the rule at stake in 102 …

How Lawyers Can Help Save The Planet, Michael B. Gerrard, John C. Dernbach

Faculty Scholarship

Scientific reports, coming in a steady stream, are highlighting the urgency of reducing greenhouse gas emissions so as to avoid the worst impacts of climate change. Already, hurricanes, coastal and inland flooding, wildfires, heat waves and other extreme weather events are causing severe economic damage and loss of life, and their increasing severity has been attributed to climate change. The decades to come promise to be even worse.

Explanation < Justification: Gdpr And The Perils Of Privacy, Talia B. Gillis, Josh Simons

Faculty Scholarship

The European Union’s General Data Protection Regulation (GDPR) is the most comprehensive legislation yet enacted to govern algorithmic decision-making. Its reception has been dominated by a debate about whether it contains an individual right to an explanation of algorithmic decision-making. We argue that this debate is misguided in both the concepts it invokes and in its broader vision of accountability in modern democracies. It is justification that should guide approaches to governing algorithmic decision-making, not simply explanation. The form of justification – who is justifying what to whom – should determine the appropriate form of explanation. This suggests a sharper …

Reconstituting The Future: An Equality Amendment, Catherine A. Mackinnon, Kimberlé W. Crenshaw

Faculty Scholarship

A new constitutional amendment embodying a substantive intersectional equality analysis aims to rectify the founding U.S. treatment of race and sex and additional hierarchical social inequalities. Historical and doctrinal context and critique show why this step is urgently needed. A draft of the amendment is offered.

Symposium: The Future Of The New International Tax Regime, Rosanne Altshuler, Fadi Shaheen, Jeffrey Colon, Michael Graetz, Rebecca Kysar, Susan Morse, Daniel Shaviro, Richard Phillips, Daniel Rolfes, Daniel Rosenbloom, Stephen Shay, Steven Dean

Faculty Scholarship

The symposium was held at Fordham University School of Law on October 26, 2018. It has been edited to remove minor cadences of speech that appear awkward in writing and to provide sources and references to other explanatory materials in respect to certain statements made by the speakers.

Building A Good Jobs Economy, Dani Rodrik, Charles F. Sabel

Faculty Scholarship

Conventional models are failing throughout the world. In the developed world, the welfare state-compensation model has been in retrenchment for some time, and the drawbacks of the neoliberal conception that has superseded it are increasingly evident. Yet there is no compelling alternative on offer. In the developing world, the conventional, tried-and-tested model of industrialization has run out of steam. In both sets of societies a combination of technological and economic forces (in particular, globalization) is creating or exacerbating productive/technological dualism, with a segment of advanced production in metropolitan areas that thrives on the uncertainty generated by the knowledge economy co-existing …

Richard N. Gardner (1927–2019), Lori Fisler Damrosch

Faculty Scholarship

Richard Gardner occupies a unique place in the history of United States diplomacy, in the teaching and practice of international law, in scholarship across a wide range of fields of interest to our discipline, and in the life of this Society. He was my valued colleague and mentor at Columbia University for many years, not just at the Law School, but also at the School of International and Public Affairs, where he nurtured and inspired generations of diplomats and policy experts to follow the call of public service. Having ascended the academic ladder to ever more dazzling heights — from …

Reevaluating School Searches Following School-To-Prison Pipeline Reforms, Joshua Gupta-Kagan

Faculty Scholarship

The U.S. Supreme Court held in New Jersey v. T.L.O. that school officials could search students without a warrant and with only reasonable suspicion, not probable cause, because of schools’ need for discipline and the relationship between educators and students. That case belongs to a body of Fourth Amendment cases involving, in T.L.O.’s terms, “special needs, beyond the normal need for law enforcement.” What Fourth Amendment standard, then, governs searches involving one of the roughly 20,000 school resource officers (SROs) in American schools? Most state courts to decide the issue in the 1990s and 2000s found that T.L.O. applied …

Building Bridges: Examining Race And Privilege In Community Economic Development: Introductory Overview, Priya Baskaran, Renee Hatcher, Lynnise E. Pantin

Faculty Scholarship

The country has been in economic recovery since the Great Recession in 2007. Home prices have since stabilized after the mortgage and foreclosure crisis that followed the Recession. In late 2017, the federal government passed the Tax Cuts and Jobs Act, leading to a surge in corporate earnings. As of the time of this writing, major stock indicators are at all-time highs, and interest rates are low. But corporate indicators and interest rates do not paint the entire picture. Most of the economic recovery is in affluent, predominately white parts of the country, while distressed areas inhabited by people of …

Engineering Rules, Peter L. Strauss

Faculty Scholarship

“Engineering Rules” is a clever triple entendre, evoking rules (the industrial standards that are its concern), the emergence of engineering (the profession largely responsible for their creation) and the consensus processes developed over time (the engineering) by which they have been created. The book is an extraordinarily detailed history of the movement from national to international standards creation and use, a necessary product of the industrial age and the emergence of a global economy. It introduces as its heroes, in remarkably intimate accounts of their careers, a series of men of rectitude and accomplishment who selflessly built the practice. The …

The Reality Of Indian Regulation, Devesh Kapur, Madhav Khosla

Faculty Scholarship

In this introductory chapter, we have chosen to resist exploring some of the general themes associated with regulation, from its capacity to respond to market failures and market limitations, to the ways to make it accountable. Instead, we have chosen to turn to certain features of Indian regulation that are distinctive. Our basic premise is that, for all the legal ambiguities and institutional weaknesses, studying the Indian regulatory state is unavoidable, and may even be the inevitable starting point for numerous other issues, from economic growth to inequality to democratic accountability. This premise is only strengthened by the fact that, …

Abortion Talk, Clare Huntington

Faculty Scholarship

Public service announcements routinely note that one in eight women will be diagnosed with breast cancer. Advocates frequently invoke the twenty percent wage gap between men and women. And educational groups often cite the (more contested) statistic that one in five women will be sexually assaulted during college. But there is another data point not regularly part of public conversation: nearly one in four women will have an abortion by the age of forty-five. The widespread — but largely secret — practice of terminating pregnancies is what Carol Sanger wants us to talk about. As much as possible.

Alienating Citizens, Amanda Frost

Scholarly Articles in Law Reviews & Journals

Denaturalization is back. In 1967, the Supreme Court declared that denaturalization for any reason other than fraud or mistake in the naturalization process is unconstitutional, forcing the government to abandon its aggressive denaturalization campaigns. For the last half century, the government denaturalized no more than a handful of people every year. Over the past year, however, the Trump Administration has revived denaturalization. The Administration has targeted 700,000 naturalized American citizens for investigation and has hired dozens of lawyers and staff members to work in a newly created office devoted to investigating and prosecuting denaturalization cases.

Using information gathered from responses …

An Irrevocably Tainted Opinion: Zen's Threat To Public Discourse, Andrew F. Popper

Scholarly Articles in Law Reviews & Journals

In Zen Magnets v. Consumer Product Safety Commission, the court barred a federal agency decision maker from participating in a case based on an irrevocably closed mind test satisfied by an open-ended “appearance of impropriety” standard. The decision failed to follow the well-worn path that requires a presumption of honesty, integrity, and good faith for administrative actors. The exclusion from this case, an enforcement action, was based on a single comment made several years earlier in a rulemaking. This action denied unjustly a fair-minded and distinguished agency official from exercising the right and responsibility to participate in an important case. …

Rethinking Feres: Granting Access To Justice For Service Members, Andrew F. Popper

Scholarly Articles in Law Reviews & Journals

In 1946, the ancient wall of sovereign immunity gave way with the passage of the Federal Tort Claims Act (FTCA) opening the courthouse doors to persons harmed by those acting on behalf of the federal government. From the outset, FTCA liability was limited by the expansive discretionary function exception and other express limitations on civil actions. Unresolved in the FTCA was the fate of members of our armed forces injured by actions "incident to service" but outside of armed conflict. Four years later, in Feres v. United States, the Court addressed this question placing dramatic limits on civil tort claims …

The Misuse Of Product Misuse: Victim Blaming At Its Worst, Andrew F. Popper, Robert Adler

Scholarly Articles in Law Reviews & Journals

This Paper addresses the legal consequences that surface when a consumer uses a product in a manner not specifically in- tended by that product's designer or manufacturer. If a product is used in a reasonably foreseeable manner, the fact that the use is at odds with a manufacturer's intention should not be a basis to deny tort liability or limit the regulatory options of the Consumer Product Safety Commission. If a product proves to be unsafe, defective, dangerous, or otherwise hazardous to users and consumers, use patterns should not be the primary determinant in assessing regulatory and common law sanctions …

Defining Detention: The Intervention Of The European Court Of Human Rights In The Detention Of Involuntary Migrants, Anita Sinha

Scholarly Articles in Law Reviews & Journals

This Article examines the European Court of Human Rights' intervention in the detention of involuntary migrants. It analyzes the use of "carceral migration control" in response to a migration "crisis," and argues that the actual crisis in the region is one of politics and policies rather than the magnitude of migration. It explores the consequences of a crisis moniker for migration, including shortsighted migration policies, entrenched caricatures of migrants as threatening, and excessive emphasis on punitive rather than humanitarian responses. Responding to migration as a crisis has led states in Europe and elsewhere to shift the movement of people across …

Eitc For All: A Universal Basic Income Compromise Proposal, Benjamin Leff

Scholarly Articles in Law Reviews & Journals

Universal Basic Income ("UBI") is a concept that has recently begun to enter the popular political consciousness in the United States. It is defined as "a regular cash income paid to all, on an individual basis, without means test or work requirement." It is invoked for a wide variety of political and social purposes, but is almost always presented as radically different from existing governmental welfare and transfer systems. Once a UBI is disaggregated into discrete policy components, it is possible to imagine to what degree existing programs share the benefits (and detriments) of a UBI to a greater or …

Visibility And Accountability: Shining A Light On Proceedings In Misdemeanor Two-Tier Court Systems, Binny Miller

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Accused And Unconvicted: Fleeing From Wealth-Based Pretrial Detention, Cynthia E. Jones

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Multilateral Development Banks, Their Member States And Public Accountability: A Proposal, Daniel D. Bradlow

Scholarly Articles in Law Reviews & Journals

More than 25 years ago the multilateral development banks (MDBs) began establishing independent accountability mechanisms (IAMs), such as the World Bank’s Inspection Panel, to address concerns about MDB accountability to those communities and groups who were harmed by their decisions and actions. This essay argues that these mechanisms need updating. In the interests of promoting new and creative thinking about these mechanisms, it makes an ambitious two-part proposal designed to improve the efficacy of the IAMs, while also respecting the sovereignty of their member states and protecting an appropriate level of immunity for the MDBs. First, the MDBs should jointly …

Why Central Banks Need To Take Human Rights More Seriously, Daniel D. Bradlow

Scholarly Articles in Law Reviews & Journals

Most central bankers think that there is a tenuous connection between the operations of central banks and human rights. Their responsibility is to concentrate on the relatively narrow set of macro-economic variables that are relevant to their mandates and to leave to their country’s political leadership the decisions dealing with the complex and politically sensitive variables that affect the functioning of the economy and society.

This position is no longer tenable. Climate change is forcing the central banking community to rethink their view of their responsibilities. The recent release of the Network for Greening, the Financial System’s first comprehensive report …

Human Rights Heroes: The Challengers Of Free Speech, Stephen Wermiel

Scholarly Articles in Law Reviews & Journals

The U.S. Supreme Court's jurisprudence on freedom of speech and press spans little more than 100 years, during which justices from Oliver Wendell Holmes to John Roberts have weighed in on the development of the law. But perhaps more than in some other areas of constitu- tional law, the evolution and growth of free speech have required the courage, sacrifice, determination, and commitment of hundreds, maybe thousands, of litigants over the years who have waged heroic struggles for their rights.

Disrupting The Discrimination Narrative: An Argument For Wage And Hour Laws' Inclusion In Antisubordination Advocacy, Llezlie Green

Scholarly Articles in Law Reviews & Journals

The traditional discrimination narrative dominates both legal and popular understanding of workplace exploitation of African American workers. This narrative, however, is incomplete as it fails to consider other chronic workplace challenges such as wage theft. The dominant narrative draws upon an anticlassification framework rather than an antisubordination framework. In addition, post-racial legal analyses complicate the dominant narrative’s utility, particularly in a system plagued by structural inequality. Furthermore, both its legal underpinnings and the normative realities of pursuing discrimination claims challenge its efficacy in addressing workplace subordination. Wage theft has largely characterized only the immigrant worker exploitation narrative, despite wage theft’s …

Wage Theft In Lawless Courts, Llezlie Green

Scholarly Articles in Law Reviews & Journals

Low-wage workers experience wage theft — that is, employers’ failure to pay earned wages — at alarmingly high rates. Indeed, the number of wage and hour cases filed in federal and state courts and administrative agencies steadily increases every year. While much of the scholarly assessment of wage and hour litigation focuses on large collective and class actions involving hundreds or thousands of workers and millions of dollars in lost wages, the experiences of individual workers with small claims have received little attention. Furthermore, scholarly consideration of the justice gap in lower courts, more generally, has often focused on debt …

Data Disparity: Tiered Pricing As An Alternative To Consumer Iot Data Privacy Regulations, Matthew Lostocco

Honors Theses and Capstones

In recent years, Internet of Things (IoT) devices have exploded on the consumer scene. These emerging products bring new technological capabilities into our everyday lives. IoT is projected to contribute anywhere from $4-11 trillion to the global economy and companies are investing billions of dollars into the technology. However, with the vast amount of data that IoT devices collect, consumers are burdening the risk of having their personal data breached or sold to third parties. This paper first identifies why consumers may be weary or willing towards providing their personal data and how unconscious biases in the purchasing process cause …