Law Commons^™

The Financial Crisis, Antiglobalism Fervor And Entrenchment: A Warning For The United States And United Kingdom, Michael Medved

Notre Dame Journal of Law, Ethics & Public Policy

No abstract provided.

Access To Algorithms, Hannah Bloch-Wehba

Fordham Law Review

Federal, state, and local governments increasingly depend on automated systems—often procured from the private sector—to make key decisions about civil rights and liberties. When individuals affected by these decisions seek access to information about the algorithmic methodologies that produced them, governments frequently assert that this information is proprietary and cannot be disclosed. Recognizing that opaque algorithmic governance poses a threat to civil rights and liberties, scholars have called for a renewed focus on transparency and accountability for automated decision-making. But scholars have neglected a critical avenue for promoting public accountability and transparency for automated decision-making: the law of access to …

Preventing The Bad From Getting Worse: The End Of The World (Trade Organization) As We Know It?, Bernard Hoekman, Petros C. Mavroidis

Faculty Scholarship

Recent survey evidence and proposals made in long-running negotiations to improve WTO dispute settlement procedures illustrate that many stakeholders believe the system needs improvement. The Appellate Body crisis could have been avoided but for the use of consensus as WTO working practice. Resolving the crisis should prove possible because the matter mostly concerns a small number of more powerful WTO members. We make several proposals to revitalize the WTO appellate function but argue that unless the WTO becomes a locus for new rulemaking, re-establishing the appellate function will not prevent a steady decline in the salience of the organization. A …

New York’S New Statute On Siting Renewable Energy Facilities, Michael B. Gerrard, Edward Mctiernan

Faculty Scholarship

As part of a massive budget bill signed into law by Gov. Andrew Cuomo on April 3, New York has adopted the Accelerated Renewable Energy Growth and Community Benefit Act (AREGCBA). It completely revamps the process under which large-scale renewable energy facilities and associated transmission lines receive state and local approvals.

New York Environmental Legislation In 2019, Michael B. Gerrard, Edward Mctiernan

Faculty Scholarship

In 2019, with the Democrats newly in full control of the State Senate, the Assembly and the Governor’s office, New York adopted more environmental legislation than it had in more than a decade. This included a sweeping climate change statute, a new environmental justice article in the Environmental Conservation Law, and a statewide ban on plastic carryout bags. This annual survey reports on these developments and numerous other laws targeting environmental concerns.

The Paradox Of Legal Training And Leadership: A Conversation Between Akilah Folami And Susan Sturm, Akilah Folami, Susan P. Sturm

Faculty Scholarship

Professor Akilah Folami:
Welcome and thank you for coming. I am eager to engage in this opening exchange with Susan Sturm today in hopes that it will help bring to surface some of the issues that undergird the conversations planned for today in the panels. So let us begin. Susan has been teasing out a series of paradoxes that she argues develops in the tensions built into lawyer-leadership, i.e., legal training and leadership development. Her work on these lawyer-leadership paradoxes grows out of her other work that is related to the theme of this conference: Leading Differently Across Difference. She …

Summary: Combating Climate Change With Section 115 Of The Clean Air Act, Jonathan Cannon, Ann E. Carlson, Greg Dotson, Michael B. Gerrard, Justin Gundlach, Jayni Foley Hein, Cale Jaffe, Michael A. Livermore, Jason A. Schwartz, Daniel Selmi, Jessica A. Wentz, Philip S. Barnett, Keith J. Benes, Alexandra E. Teitz

Faculty Scholarship

The scale and scope of the climate crisis calls for comprehensive nationwide efforts to reduce greenhouse gas emissions. New legislation, passed by Congress and signed by the President, is the first and best option for climate action at the federal level. This could be a version of the Green New Deal, a carbon tax, sectoral limits, an emissions cap with compliance trading, or another approach. What matters most is that the legislation effectively cut the greenhouse gas emissions driving the world’s temperatures ever higher. Unfortunately, the prospect for federal legislation is uncertain, while strong and decisive action is needed now. …

Climate Reregulation In A Biden Administration, Michael Burger, Daniel J. Metzger, Hillary Aidun, Susan Biniaz

Faculty Scholarship

On January 20, 2017, Inauguration Day, the Sabin Center for Climate Change Law at Columbia Law School launched the Climate Deregulation Tracker, the first of what would become numerous online trackers, news reports, academic analyses, and other resources designed to spotlight the Trump administration’s use and abuse of executive authority to pursue its agenda to cut back on government regulations and to promote the extraction and use of fossil fuels. The Climate Deregulation Tracker has had a relatively narrow purpose: to keep tabs on the Trump administration’s efforts to dismantle the federal government’s climate-related regulations and policies and help inform …

New York Can Lead World In Fighting Climate Change, Michael B. Gerrard

Faculty Scholarship

New York State now has one of the strongest climate change laws in the world, and if we succeed in implementing it, the state will have demonstrated that it is possible to defeat what may be the greatest threat facing humanity.

Complexity, Judgment, And Restraint, Gerard E. Lynch

Faculty Scholarship

I am honored to have been asked to give this year’s James Madison Lecture. I hesitate to single out any of my extraordinary predecessors at this podium – there are too many great judges to list, and too much risk of slighting any. So I will note only that the list includes both judges for whom I clerked more than forty years ago, Justice William J. Brennan, Jr., and Chief Judge Wilfred Feinberg, of the court on which I now serve. That long-ago law clerk could not have dreamed of being someday in a position once occupied by those two …

Ordinary Tort Litigation In China: Law Versus Practical Justice?, Benjamin L. Liebman

Faculty Scholarship

This essay examines the roles courts play in tort litigation in China, in particular in litigation resulting from death and injury on China’s roads. At first glance traffic accident litigation in China appears to be an area in which courts play minor roles. The police, not courts, are the primary fact-finders. China’s mandatory automobile insurance system has clear guidelines for compensation levels and imposes nearly strict liability in most traffic accident cases. Courts’ roles are, at least in law, largely relegated to calculating damages. Chinese law provides schedules for assessing damages based on average local income levels, and thus outcomes …

Disinformation In The Marketplace Of Ideas, Tim Wu

Faculty Scholarship

It was just one line, nearly a throwaway; technically a subordinate clause. Yet that one clause from Oliver Wendell Holmes’s Abrams dissent breathed life into a metaphor, the “marketplace of ideas,” whose lasting power is undeniable. Nor is it difficult to understand why. Yes, it may be incomplete, inaccurate, and possibly cribbed from John Stuart Mill, but the metaphor matches something we all see. Ideas and ideological programs are out there looking for adherents or “buyers.” In Holmes’s time, progressives, socialists, and fascists courted supporters, just as similar groups do now. Specific ideas like the flat tax or the legalization …

Exemplary Legal Writing 2019: Five Recommendations, G. Edward White, Sarah Seo

Faculty Scholarship

In the song “Natalie Cook” from the musical podcast “36 Questions,” a married couple deals with the fallout from the husband’s discovery that his wife is really an individual named Judith, who “built a past / Made up a history / Details that fit this person named / Natalie.” When the husband accuses the wife, “You’re the one who made her up,” Natalie/Judith responds, “It was a bit more collaborative than you’re remembering.”

The International Joint Commission And Air Pollution: A Tale Of Two Cases, Owen Temby, Don Munton

School of Earth, Environmental, & Marine Sciences Faculty Publications

No abstract provided.

Cross-Border Corporate Insolvency In The Era Of Soft(Ish) Law, John A.E. Pottow

Book Chapters

Insolvency law (bankruptcy law to some) moves so quickly in the cross-border realm that this piece's discussion, started in 2015, is probably already outdated. Nonetheless, I publish it unrepentantly because it turns overdue attention to the role of soft law in this domain. Building on earlier work in which I address the role of incrementalism, I discuss the marked success of the UNCITRAL Model Law on Cross-Border Insolvency and its cognate Insolvency Regulation in the EU (the latter now into its "Recast"). As predicted/hoped, the EU Recast, joining other contemporaneous reform projects, is building upon the scaffolding of legal doctrines …

'Of Sound Mind And Body': A Call For Universal Drug Screening For All Newborns, Frank Vandervort, Vincent J. Palusci

Book Chapters

Substance abuse is a major medical and social problem. Estimates suggest that each year some 15 percent of the 4 million babies born in the United States are exposed to drugs or alcohol. Research demonstrates that exposure to these substances is harmful to the children in both the short term and across their developmental trajectory. This chapter summarizes the harms that might result from such prenatal exposure and considers the ways that both federal and state law respond to this. The chapter argues for universal drug testing of newborns in an effort to ascertain whether they have been prenatally exposed …

Union Rights For All: Towards Sectoral Bargaining In The United States, Kate Andrias

Book Chapters

American labor unions have collapsed. Having once bargained for more than a third of American workers, unions now represent only about 6 percent of the private sector workforce. In the wake of new statutory and constitutional limitations, their presence in the public sector is shrinking as well. As unions have declined, the United States has lost a key equalizing institution in politics and the economy, INdeed, economic inequality is at its highest point since the Gilded Age, when unionization rates were similarly low. With the weakening of unions, the United States has also lost a key mechanism for protecting against …

The Case Against Equity In American Contract Law, Jody S. Kraus, Robert E. Scott

Faculty Scholarship

The American common law of contracts appears to direct courts to decide contract disputes by considering two opposing points of view: the ex ante perspective of the parties’ intent at the time of formation, and the ex post perspective of justice and fairness to the parties at the time of adjudication. Despite the black letter authority for both perspectives, the ex post perspective cannot withstand scrutiny. Contract doctrines taking the ex post perspective – such as the penalty, just compensation, and forfeiture doctrines – were created by equity in the early common law to police against abuses of the then …

The New Mechanisms Of Market Inefficiency, Kathryn Judge

Faculty Scholarship

Mechanisms of market inefficiency are some of the most important and least understood institutions in financial markets today. A growing body of empirical work reveals a strong and persistent demand for “safe assets,” financial instruments that are sufficiently low risk and opaque that holders readily accept them at face value. The production of such assets, and the willingness of holders to treat them as information insensitive, depends on the existence of mechanisms that promote faith in the value of the underlying assets while simultaneously discouraging information production specific to the value of those assets. Such mechanisms include private arrangements, like …

Seeing Transparency More Clearly, David E. Pozen

Faculty Scholarship

In recent years, transparency has been proposed as the solution to, and the cause of, a remarkable range of public problems. The proliferation of seemingly contradictory claims about transparency becomes less puzzling, this essay argues, when one appreciates that transparency is not, in itself, a coherent normative ideal. Nor does it have a straightforward instrumental relationship to any primary goals of governance. To gain greater purchase on how transparency policies operate, scholars must therefore move beyond abstract assumptions and drill down into the specific legal, institutional, historical, political, and cultural contexts in which these policies are crafted and implemented. The …

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

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 …

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

Faculty Scholarship

This Review has three parts. Part I aims to convey something of the breadth and interest of Hasday’s fascinating new book, foregrounding the role of gender and beginning to touch the subject of trust. Part II delves briefly but widely into the theme of trust, which pervades the book and invites further examination. Part III presents a framework that combines affective trust and epistemic curiosity and applies this framework to illuminate and sort Hasday’s proposals for reform; to critique a recent, dramatic change in the evidentiary treatment of marital confidences; and to devise a novel approach to prenuptial agreements. Throughout, …

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 areas …

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

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 …

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.

Political Wine In A Judicial Bottle: Justice Sotomayor's Surprising Concurrence In Aurelius, Christina D. Ponsa-Kraus

Faculty Scholarship

For seventy years, Puerto Ricans have been bitterly divided over how to decolonize the island, a U.S. territory. Many favor Puerto Rico’s admission into statehood. But many others support a different kind of relationship with the United States: they believe that in 1952, Puerto Rico entered into a “compact” with the United States that transformed it from a territory into a “commonwealth,” and they insist that “commonwealth” status made Puerto Rico a separate sovereign in permanent union with the United States. Statehood supporters argue that there is no compact, nor should there be: it is neither constitutionally possible, nor desirable …

Fair Use In The United States: Transformed, Deformed, Reformed?, Jane C. Ginsburg

Faculty Scholarship

Since the U.S. Supreme Court’s 1994 adoption of “transformative use” as a criterion for evaluating the first statutory fair use factor (“nature and purpose of the use”), “transformative use” analysis has engulfed all of fair use, becoming transformed, and perhaps deformed, in the process. A finding of “transformativeness” often foreordained the ultimate outcome, as the remaining factors, especially the fourth (impact of the use on the market for or value of the copied work), withered into restatements of the first. For a time, moreover, courts’ characterization of uses as “transformative” seemed ever more generous (if not in some instances credulous). …

Fair Use Factor Four Revisited: Valuing The "Value Of The Copyrighted Work", 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 …