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Rule by Data: The End of Markets?
Get PDFThis Article explores data as a source and, in their processed variant, as a means of governance that will likely replace both markets and the law. Discussing data not as an object of transactions or an object of governance, but as a tool for governing others on a scale that rivals that of nation states with their law, seems a fitting topic for a special issue that is devoted to the legal construction of markets. Here, I argue that while it may well be the case that law constitutes markets, markets are not the only way in which economic relations may be organized, and law is not the only feasible mode of governing these relations. Central planning under socialism posed an alternative, which proved ultimately non-viable. The rise of big tech companies (Big Tech) and their accumulation of vast amounts of data offers yet another possibility: the rule by data
Anticipating Venezuela\u27s Debt Crisis: Hidden Holdouts and the Problem of Pricing Collective Action Clauses
Get PDFA creditor who asks for stronger enforcement rights upon its debtor’s default will rationally accept a lower interest rate reflecting the greater expected recovery the exercise of those rights provides. Over a dozen studies, however, have failed to document this basic relationship in the context of the collective action clause, a key provision in sovereign bonds. We conjecture that this failure is because enforcing the rights in question requires collective decision-making among anonymous creditors with different interests, impeding market predictions regarding future price effects. The pricing of rights that require collective enforcement thus turns on whether the market observes an activist creditor willing to serve as a collectivizing agent to enforce the relevant rights in litigation. When activist creditors, intent on litigating, hide from the market in order to enhance their returns, the market lacks the information to price the collective rights accurately. In this Article, we use data from Venezuela’s ongoing debt crisis to test this collective action story. Our data provides evidence of the absence of price differences in contract terms that require collective decision-making for enforcement. Conversely, we find that in those situations where the market identifies the presence of an activist creditor, the relevant rights do get priced. This evidence sheds light on how the absence of efficient pricing of terms in these collective markets can impede efforts by defaulting sovereign debtors, like Venezuela, to restructure their obligations. Moreover, the timing of when such terms are priced is critical for social welfare. Because collective action clauses that provide strong enforcement rights are not priced at the time the sovereign issues bonds, sovereigns are not given the right incentives to adopt these terms at the outset
An Environmental Lawyer\u27s Fraught Quest for Legal Tools to Hold Back the Seas
Get PDFThe law is the principal mechanism by which society resolves disputes and implements policies. For more than forty years, I have worked to use the law to address environmental problems, initially by trying to stop projects that would increase pollution and harm communities. But there are limits to what the courts can do without explicit direction from legislatures. Climate change is a prime example. Some have seen litigation as a silver bullet, but at least so far that has not been the case. Elections matter more than lawsuits. Until and unless elections bring to power a president, a Congress, and local officials who will take the necessary measures, litigation is needed to inhibit those who will try to move backwards, spur on those with good intentions, help implement the policies set by wise Congresses past, and continue the quest for redress for victims. Well-crafted laws can also lead the way to solutions
Rescuing the Federal Arbitration Act: The New Restatement on International Arbitration
No full textThe Restatement of the U.S. Law of International Commercial and Investor-State Arbitration, like all Restatements, consists of three parts. It consists of a code-like presentation of the law, popularly known as “Blackletter,” drafted as clearly and concisely as reasonably possible. The Blackletter of each section of the Restatement is followed by “Comments,” designed to explain the basic rationale or rationales for the positions taken. The Comments are in turn followed by “Reporters’ notes,” which present, sometimes at considerable length and in considerable detail, the case law and, in some instances, the legal scholarship upon which the Restatement drafter relied. Even authority contrary to the position taken by the Restatement will be acknowledged and cited.
In this article, I identify the issues arising in the Restatement that either have the greatest significance or aroused the greatest controversy. They are here arranged according to the occasion over the life cycle of an arbitration in which those issues arise. These occasions are three: judicial enforcement of an arbitration agreement, judicial involvement in an arbitral proceeding, and judicial actions to set aside or enforce an award
Election Law Localism in the Time of COVID-19
Get PDFIn just a few short months, the COVID-19 pandemic has already provoked multiple election law disputes. These have tended to track the same normative and policy conflicts that have marked election law for years, particularly the tension between strict adherence to preexisting rules and the willingness to stretch or relax those rules in order to deal with emergency conditions, and the overlapping debate over whether the primary threat to the integrity of the electoral system is fraud or the legal and administrative obstacles to voting during a pandemic. A third, but much less discussed, strand in the emerging COVID-19 election law jurisprudence is the role of local elections officers, often in conflict with state officials, in protecting the right to vote. Tracking the state-local conflicts that have marked the governmental response to the pandemic generally – as well as the red state/blue city disputes over a host of hot-button issues over the last decade – local election law officials in a number of states have sought to find some play in the election-law joints in order to make it possible for voters in their jurisdictions to vote safely in pandemic conditions, while state officials have pushed back, insisting that these county registrars, clerks, or recorders are acting beyond their authority and in violation of state law
Decarcerating New York City: Lessons from a Pandemic
No full textOver the last decade, long before the sweeping impact of COVID-19, the criminal legal system in New York City has been on a halting path toward decarceration. Set against the national backdrop of declining crime rates and a reckoning with the economic, social, and racial costs of mass criminalization and incarceration, elected officials in New York City and State have acknowledged that a shift toward reducing the number of people held in New York City jails is long overdue. Particular attention has been focused on Rikers Island, the notoriously violent, sprawling jail complex, which has been regarded as one of the most visibly troubling aspects of the administration of criminal “justice” in New York City. With its reputation for corruption, violence, and human rights abuses, Rikers has become the final resting place for New York City’s failed social welfare and criminal legal systems. Former New York State Court of Appeals Chief Justice Jonathan Lippman has called Rikers Island “a stain on the soul of New York City.”
This Article examines how the City’s broader decarceration agenda can be informed by the lessons learned from efforts to rapidly depopulate Rikers Island during the height of the COVID-19 outbreak. It argues that long term decarceration in New York City will not be realized without meaningful investments in necessary social supports and a willingness to shift away from outmoded conceptions of public safety. The economic instability brought about by COVID-19 undoubtedly make these financial and ideological changes all the more necessary and complex. Part I provides a brief overview of the pre-COVID-19 approach to decarceration in New York City. Part II details how various institutional actors responded to the need to accelerate the release of people detained at Rikers Island during the height of the pandemic. It highlights the often-regressive character of decision-making by police, prosecutors, courts, and government agencies during the pandemic. Part III argues that critical insights gained during the systemic response to the initial COVID-19 outbreak should inform ongoing decarceration efforts in New York City. It contends that the City’s COVID-19 response shows that many institutional actors across the City are only willing to do the bare minimum in achieving decarceration, even when the lives of detained people and City employees are at stake. This Article proposes movement away from deeply entrenched, punitive practices and policies and more expansive investment in non-carceral services and institutions for a meaningful, long-term decarceral agenda
Roman Law and Economics, Vol. 2: Exchange, Ownership, and Disputes
No full textAncient Rome is the only society in the history of the western world whose legal profession evolved autonomously, distinct and separate from institutions of political and religious power. Roman legal thought has left behind an enduring legacy and exerted enormous influence on the shaping of modern legal frameworks and systems, but its own genesis and context pose their own explanatory problems. The economic analysis of Roman law has enormous untapped potential in this regard: by exploring the intersecting perspectives of legal history, economic history, and the economic analysis of law, the two volumes of Roman Law and Economics are able to offer a uniquely interdisciplinary examination of the origins of Roman legal institutions, their functions, and their evolution over a period of more than 1000 years, in response to changes in the underlying economic activities that those institutions regulated.
Volume II covers the concepts of exchange, ownership, and disputes, analysing the detailed workings of credit, property, and slavery, among others, while Volume I explores Roman legal institutions and organizations in detail, from the constitution of the Republic to the management of business in the Empire. Throughout each volume, contributions from specialists in legal and economic history, law, and legal theory are underpinned by rigorous analysis drawing on modern empirical and theoretical techniques and methodologies borrowed from economics. In demonstrating how these can be fruitfully applied to the study of ancient societies, with due deference to the historical context, Roman Law and Economics opens up a host of new avenues of research for scholars and students in each of these fields and in the social sciences more broadly, offering new ways in which different modes of enquiry can connect with and inform each other.https://scholarship.law.columbia.edu/books/1247/thumbnail.jp
Criminal Deterrence: A Review of the Missing Literature
Get PDFThis 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 where substantial relevant knowledge exists but is largely disregarded within the criminal deterrence research program. The empirical analysis of environmental and tax compliance are two stark examples. Finally, I stretch “missing” to describe topics that have been both studied and reviewed, but where substantial challenges remain. These include the theoretical explanation for the role of offense history, the proper accounting for the offender’s gains, the estimation of the costs of various crimes, and the cost-benefit analysis of crime-reduction policies.
Among the literature’s missing pieces, several stand out both on their own and because they combine to produce a highly unfortunate result. First, the literature makes only a minor effort to estimate the cost of crime, and essentially no effort to estimate the cost of white-collar offenses. Combined with no centralized reporting of white-collar crimes and, therefore, no empirical analysis of them, the literature adds to the impression – not supported by the available evidence – that street crime is a great social problem while white-collar crime is a minor one. Second, the literature fails to treat misdemeanors (and misdemeanor enforcement) as an independent subject of study. This creates an impression – also unjustified – that thirteen million or so misdemeanor charges a year – and countless millions of stops, frisks, and interrogations that lead to no charges – all heavily skewed by race and class – are not a major social problem either. Third, the literature is only starting to develop a benefit-cost analysis of various crime-reducing strategies. This analysis almost exclusively considers measures reflected in the optimal deterrence model and, therefore, internal to the criminal justice system. This creates an impression – almost surely false – that deterrence is the only means of reducing future crime. Finally, the literature ignores distributional analysis altogether, even though the burdens of crime and the criminal justice system vary dramatically, predictably, and disturbingly by race and income. By disregarding this variation, the literature may be reinforcing it. For all these reasons, the criminal deterrence literature may well be contributing to the overwhelming, singular focus of American society and law enforcement on the forceful deterrence of street crime. Addressing the missing pieces would enrich the literature, expand its appeal and policy-relevance, and enable academics to contribute to the effort of setting the US criminal justice system on the path of long-overdue structural reforms
Antitrust & Corruption: Overruling \u3ci\u3eNoerr\u3c/i\u3e
Get PDFWe live in a time when concerns about influence over the American political process by powerful private interests have reached an apogee, both on the left and the right. Among the laws originally intended to fight excessive private influence over republican institutions were the antitrust laws, whose sponsors were concerned not just with monopoly, but also its influence over legislatures and politicians. While no one would claim that the antitrust laws were meant to be comprehensive anti-corruption laws, there can be little question that they were passed with concerns about the political influence of powerful firms and industry cartels.
Since the 1960s, however, antitrust law’s scrutiny of corrupt and deceptive political practices has been sharply limited by the Noerr-Pennington doctrine, which provides immunity to antitrust liability for conduct that can be described as political or legal advocacy. The doctrine was created through apparent First Amendment avoidance, based on the premise that the Sherman Act could not have been intended to interfere with a right to petition government.
The Noerr decision, dating from 1961, was strained when it was decided and has not aged well. As an interpretation of the antitrust laws, it ignored Congressional concern with political mischief undertaken by conspiracy or monopoly. Its legitimacy has always rested on avoidance of the First Amendment, and while Noerr itself may have legitimately reflected such avoidance, the subsequent growth of a Noerr immunity has blown past any First Amendment-driven defense of its existence. For that reason, others have suggested a reformulation of the doctrine. The better answer is that, lacking constitutional or statutory foundation, Noerr should be overruled.
The First Amendment guarantees freedom of speech, assembly, and “to petition the government for a redress of grievances.” It therefore protects efforts to influence political debate as well as legitimate petitioning in the legislative, judicial or administrative processes. The First Amendment does not, however create a right to bribe government officials, deceive agencies, file false statements, or abuse government process through repeated filings designed only to injure a competitor. Nonetheless, each of these activities has, in some courts at least, been granted immunity under the overgrown Noerr immunity. It is an extra-constitutional outlier ripe for reexamination.
Overruling Noerr would not make political petitioning illegal. It would, instead, require defendants to rely on the First Amendment when seeking to defend what would otherwise be conduct that is illegal under the antitrust laws. Doctrinally, this is to force courts to address whether conduct in question is actually an antitrust violation, and if, so whether it is protected by the First Amendment or not, drawing on an established jurisprudence for some of the problems presented in the Noerr context
Foreign Contracts and U.S. Copyright Termination Rights: What Law Applies? – Comment
Get PDFThe 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 in the U.S. and England respectively, Ennio Morricone Music Inc. v. Bixio Music Group Ltd and Gloucester Place Music Ltd v. Le Bon illustrate the problem. In neither case was the choice of law question disputed by the parties, and hence neither court had occasion fully to analyse it. Nevertheless, the Court of Appeals for the Second Circuit in the Morricone case made an observation about the nature of U.S. copyright which has a potentially important bearing on the matter. In this article we consider the choice of law issue from the perspectives of U.S. law and English law.
Under either law, the key question is what law governs the permissible scope of an author’s grant. Given that copyright is territorial, as matter of principle, one would expect that law to be the lex loci protectionis, and that is essentially what both U.S. law and English law stipulate. Where the copyright is a U.S. copyright, application of the lex loci protectionis in accordance with the conceptualization suggested by Morricone, concerning the inalienable character of the right, leads to the conclusion that § 203 cannot be overriden by a contract subject to a different law. We do not conclude, however, that a multinational grant will incorporate every national law limitation on the scope of the grant. Limits on the scope of the grant which are substantive, when characterized in accordance with the lex loci protectionis, must be given effect to, but not limits which are evidential or procedural