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Complexity, Judgment, and Restraint
Get PDFI 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 giants of my current profession: the art and craft of judging
Privacy and Pandemics
Get PDFThe beginning of 2020 marked an unexpected turn for the world, the global pandemic of COVID-19 has affected every aspect of life. It has also created an unprecedented opportunity for governments to justify the expansion of their surveillance and collection of data. The foregoing essay, which was first published in Faculty Publications at Scholarship Archive of the Columbia Law School focuses on two types of data collection – governmental mass collection of nonanonymized location data and state-collected nonanonymized data on people\u27s health and immunity status. Several countries have applied one or both practices and it is relevant to look into them with legal perspective. Georgia is one of the countries, that also uses technology for the purpose of locating the possible contacts of the virus infected people, thus making the comparative analysis extremely relevant locally as well as globally
Association Between State Policies Using Medicaid Exclusions to Sanction Noncompliance With Welfare Work Requirements and Medicaid Participation Among Low-Income Adults
Get PDFTwenty states have pursued community engagement requirements (ie, work requirements) as a condition for Medicaid eligibility among adults considered able-bodied. Work requirements seek to improve health by incentivizing work, but may result in coverage losses.
The impact of work requirements on Medicaid coverage may extend beyond qualifying beneficiaries, by increasing confusion around benefit rules or deterring individuals from applying for coverage. However, the spillover effects of work requirements on individuals not directly subject to them are difficult to study because these programs have only recently been implemented. To examine this possibility, we studied Temporary Assistance for Needy Families (TANF), the cash welfare program enacted under welfare reform in 1996. The TANF program requires able-bodied beneficiaries to fulfill work requirements, and states can elect to terminate Medicaid benefits as a sanction for nonpregnant adult TANF participants who do not comply with them. In states adopting these sanctions, Medicaid eligibility for dual TANF-Medicaid enrollees was effectively conditional on meeting work requirements. This quasi-experimental cohort study examines whether TANF-Medicaid sanctions had spillover effects on Medicaid coverage among low-income adults who were not likely to participate in TANF and, therefore, were not directly subject to these sanctions
Mass Digitization of Chinese Court Decisions: How to Use Text as Data in the Field of Chinese Law
Get PDFSince 2014, Chinese courts have placed tens of millions of court judgments online. We analyze the promise and pitfalls of using this new data source, highlighting takeaways for readers facing similar issues using other collections of legal texts. Drawing on 1,058,986 documents from Henan Province, we identify problems with missing data and call on scholars to treat variation in court disclosure rates as an urgent research question. We also outline strategies for learning from a corpus that is vast and incomplete. Using a topic model of administrative litigation in Henan, we complicate conventional wisdom that administrative lawsuits are an extension of contentious politics that give Chinese citizens an opportunity to challenge the state. Instead, we find a high prevalence of administrative cases that reflect an underlying dispute between two private parties, suggesting that administrative lawsuits are often an attempt to enlist help from the state in resolving an underlying civil dispute
Contractual Arbitrage
Get PDFStandard-form contracts are likely to be incomplete because they are not tailored to the needs of particular deals. In an attempt to reduce incompleteness, standard-form contracts often contain clauses with vague or ambiguous terms. Terms with indeterminate meaning present opportunities for strategic behavior well after a contract has been executed. This linguistic uncertainty in standard-form commercial contracts creates an opportunity for “contractual arbitrage”: parties may argue ex post that the uncertainties in expression mean something that the contracting parties did not contemplate ex ante. This chapter argues that the scope for contractual arbitrage is a direct function of the techniques that courts use to resolve ambiguities in boilerplate language. Using the case of NML Capital v. Argentina, this chapter shows how traditional contract doctrine can produce a fertile setting for the growth of contractual arbitrage
The Brussels Effect: How the European Union Rules the World
No full textFor many observers, the European Union is mired in a deep crisis. Between sluggish growth; political turmoil following a decade of austerity politics; Brexit; and the rise of Asian influence, the EU is seen as a declining power on the world stage.
Columbia Law professor Anu Bradford argues the opposite in her important new book The Brussels Effect: the EU remains an influential superpower that shapes the world in its image. By promulgating regulations that shape the international business environment, elevating standards worldwide, and leading to a notable Europeanization of many important aspects of global commerce, the EU has managed to shape policy in areas such as data privacy, consumer health and safety, environmental protection, antitrust, and online hate speech. And in contrast to how superpowers wield their global influence, the Brussels Effect - a phrase first coined by Bradford in 2012- absolves the EU from playing a direct role in imposing standards, as market forces alone are often sufficient as multinational companies voluntarily extend the EU rule to govern their global operations.
The Brussels Effect shows how the EU has acquired such power, why multinational companies use EU standards as global standards, and why the EU\u27s role as the world\u27s regulator is likely to outlive its gradual economic decline, extending the EU\u27s influence long into the future.https://scholarship.law.columbia.edu/books/1231/thumbnail.jp
The Paradox of Contracting in Markets
Get PDFTraditional economic analysis distinguishes economic organization along three dimensions: firm, contract, and market. This categorization is misleading in any number of respects, but none more so than the assumption that contract and market are separate modes of exchange. In fact, other than barter, which is almost unknown in contemporary commercial transactions, every market transaction is implemented by contract. Thus, in markets the two modes of exchange are inextricably combined. Moreover, the vast majority of contract activity occurs in some form of market, so it does not require much loss of generalization to say that not only are contracts in all markets, but markets are also in all contracts. This implies that as markets change in character so too will the contracts that are embedded in them. Economists have failed to appreciate the implications of this integration of contract and market because of their naive and parsimonious conception of contract. But lawyers, too, have failed to appreciate the tension between the fact that markets change the shape of contract and the state’s commitment to a unitary regime of contract law. This failure to understand the relationship between contract law and the central institutions of economic organization has significant consequences. Among them is the failure to recognize what I call the fundamental paradox of contracting in markets, the topic that I take up in this Article
On Trust, Law, and Expecting the Worst
Get PDFThis 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, this Review aims to engage and inspire the reader’s own thinking. Together, we’ll make it worth your time. Trust me
Dispute Resolution in Pandemic Circumstances
Get PDFThe peaceful resolution of disputes is among the most important earmarks of a regime attached to the rule of law. Even in countries in which, for one reason or another, courts do not work especially well, civil peace is of paramount importance. The absence of effective institutions for the administration of justice between and among private parties would spell a high degree of social disorder.
Even in the absence of a crisis such as we are experiencing, justice systems face a number of challenges in this day and age. Does a jurisdiction have a sufficient number of persons qualified to administer justice, and what are the consequences of a shortfall? In the same vein, is civil justice operating under formalities that generate delays disproportionate to the purposes they serve? Do the procedures that are in place sufficiently allow parties to adequately present their case and adequately rebut their adversary’s? Is access to justice prohibitively expensive, most likely due less to court costs than to costs of representation by counsel? Are there safeguards in place to ensure the independence and impartiality of decisionmakers, and do they work? Is institutional bias or corruption a problem? Overall, does a justice system exhibit the qualities widely viewed as essential: procedural fairness, accuracy, and efficiency
The Proportionality Rule and Mental Health Harm in War
Get PDFThe foundational international humanitarian law rule of proportionality — that parties to an armed conflict may not attack where civilian harm would be excessive in relation to the anticipated military advantage — is normally interpreted to encompass civilian physical injuries only. Attacks may cause significant mental harms also, yet current interpretations of the law lag behind science in understanding and recognizing these kinds of harms. This article analyzes legal, public health, psychology, and neuroscience research to assess the extent to which mental health harms should and could be taken into account in proportionality assessments