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Beyond Unprecedented S1 Ep0: Introduction
Get PDFIn Columbia Law School’s new limited podcast series, hear from leading experts as they chart a course for economic recovery in the wake of the pandemic and suggest new ways of approaching law, policy, and governance.
Go beyond “unprecedented” with host Eric Talley as he introduces the series.https://scholarship.law.columbia.edu/beyond_unprecedented/1000/thumbnail.jp
Beyond Unprecedented S1 Ep1: Essential – and Broke
Get PDFThe pandemic has brought with it financial and emotional stress for tens of millions of Americans. Will the global health crisis cement what Professor Katharina Pistor calls “feudal type of levels of economic inequality,” or will it be an opportunity to reshape wealth distribution in the United States?
In the first episode of Beyond “Unprecedented,” host Eric Talley welcomes Pistor and Professor Michael Graetz, both authors of recent books that examine the foundations of economic inequality, to discuss how U.S. law and public policy favor the wealthy at the expense of the majority of the workforce (employed and unemployed) and potential remedies to create a more just economy.https://scholarship.law.columbia.edu/beyond_unprecedented/1001/thumbnail.jp
Race and Bankruptcy: Explaining Racial Disparities in Consumer Bankruptcy
Get PDFAfrican American bankruptcy filers select Chapter 13 far more often than other debtors, who opt instead for Chapter 7, which has higher success rates and lower attorneys’ fees. Prior scholarship blames racial discrimination by attorneys. We propose an alternative explanation: Chapter 13 offers benefits, including retention of cars and driver’s licenses, that are more valuable to African American debtors because of relatively long commutes. We study a 2011 policy change in Chicago, which seized cars and suspended licenses of consumers with large traffic-related debts. The policy produced a large increase in Chapter 13 filings, especially by African Americans. Two mechanisms explain the disparate racial impact: African Americans were more likely to have traffic debts and incurred greater costs from car seizures and license suspension due to relatively long commutes. When we match African Americans to other debtors with similar commutes, we find no racial difference in Chapter 13 filing propensitie
The Chicago School’s Limited Influence on International Antitrust
Get PDFBeginning in the 1950s, a group of scholars primarily associated with the University of Chicago began to challenge many of the fundamental tenants of antitrust law. This movement, which became known as the Chicago School of Antitrust Analysis, profoundly altered the course of American antitrust scholarship, regulation, and enforcement. What is not known, however, is the degree to which Chicago School ideas influenced the antitrust regimes of other countries. By leveraging new datasets on antitrust laws and enforcement around the world, we empirically explore whether ideas embraced by the Chicago School diffused internationally. Our analysis illustrates that many ideas explicitly rejected by the Chicago School – such as using antitrust law to promote goals beyond efficiency or regulate unilateral conduct – are common features of antitrust regimes in other countries. We also provide suggestive evidence that the influence of the antitrust revolution launched by the Chicago School has been more limited outside of the United States
The New Mechanisms of Market Inefficiency
Get PDFMechanisms 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 securitization structures that repackage cash flows from debt instruments to produce new financial instruments that are less risky and more opaque than the underlying debt, and public ones, like the rules allowing many money market mutual funds to use a net asset value of $1.00. This essay argues that recognizing these mechanisms of market inefficiency as such is a critical first step in devising policy interventions that achieve desired aims. This runs counter to the instincts of many market regulators, like the Securities and Exchange Commission, and academics who have often assumed that markets should be structured to promote information generation and efficiency.
The essay further shows, however, that defenders of the information-insensitive paradigm have failed to provide a robust institutional account of how those mechanisms can remain robust across different states of the world or the government support required if they cannot. When an adverse shock or other signal raises questions about the value of the assets underlying an information-insensitive instrument, market participants can refuse, en masse, to treat those instruments as safe. Unless the government or some other actor can provide credible information about the value of the underlying assets or financial support that renders such information irrelevant, widespread market dysfunction can follow. When that happens, the very mechanisms of market inefficiency that had enabled a market to develop can exacerbate dysfunction. Following Ronald Gilson and Reineer Kraakman’s admonishment that institutions always matter, this essay calls for the development of rich institutional accounts of how the mechanisms of market inefficiency work, when and how they can fail, and what these dynamics reveal about the role regulators should play in these domains
Thailand v. Does 1-5 of the Organization for Thai Federation
Get PDFFrom November 2019 to January 2020, the Human Rights Clinic at Columbia Law School monitored the trial of five individuals on charges of sedition and membership in a secret society, the latter predicated on the defendants’ alleged affiliation with the Organization for Thai Federation (OTF), an organization whose political platform includes changing the existing political system from a constitutional monarchy to republicanism. Specifically, the defendants were accused of a range of nonviolent activities in support of OTF, from distributing flyers and t-shirts to communicating with other supporters of OTF — all activities protected by their right to freedom of expression under human rights law. All the defendants were arrested in September 2018 and initially detained and interrogated in a military camp for several days.
On January 21, 2020, the Court convicted four of the five defendants of the charge of membership in a secret society, sentencing two defendants to three years in prison and the others to two years in prison (giving them “credit” for confessing their crimes during their detention in the military camp). The Court acquitted those four defendants of the other charge (sedition). The fifth defendant had absconded before trial.
While the Court is to be commended in this case for resisting the urging of the military witnesses to close the court to the public and for appropriately acquitting the defendants of sedition, this trial was marred by violations of the right to a fair trial, including the right to be informed of the charges, the right to counsel, the right against self-incrimination, the right to silence, and the right to a reasoned judgment. Further, the conduct of the proceedings raises substantial concerns regarding respect for the presumption of innocence and the right to be tried by an impartial court. Most notably, however, and infecting the entirety of the trial and its outcome, the case constituted a severe violation of the principle of legality and of the defendants’ right to freedom of expression. That is, the defendants’ exercise of their right to freedom of expression was penalized under a vague law — and, accordingly, pursuant to a generalized and conclusory decision — that criminalizes membership in a group without requiring that any criminal action has been taken by any individual defendant. So vague is this law that it cannot be said that the defendants could have understood which of their actions violated the law — and indeed, the judgment of the Court does not clarify which actions each defendant took that violated the law, instead apparently relying on the fact that the defendants were advocating for political reform without finding any evidence that they were aiming to commit crimes. In this way, the Court used Section 209 of the Thai Criminal Code (criminalizing membership in a secret society) as a tool to restrict the defendants’ right to freedom of expression. If the law were not so vague, the Court would not have been able to instrumentalize it to reach for such a result.
In sum, and as this report documents, the trial violated the defendants’ right to a fair trial not only because of the procedural violations in the proceedings but also because a vague law appears to have been used to punish these defendants for their protected political speech and beliefs, rather than for any criminal conduct
Government of Thailand & Chaiwat Limlikhitaksorn v. Wuth Boonlert & Samak Donnapee
Get PDFIn 2019, Samak Donnapee, a retired forestry officer, and Wuth Boonlert, an indigenous human rights advocate, were prosecuted and tried for criminal defamation. The charges, brought by a government officer, Chaiwat Limlikhit-aksorn, (in his private capacity) and the Public Prosecutor, relate to Facebook posts by Samak Donnapee. The Prosecution alleged that the Facebook posts suggested that government employee Chaiwat Limlikhit-aksorn owned land that unlawfully encroached onto a national park that is also traditionally indigenous land. Wuth Boonlert was accused of sharing one of these posts with no further commentary. None of the posts named Chaiwat Limlikhit-aksorn.
Chaiwat Limlikhit-aksorn, a senior forestry officer, is known in Thailand for his 2011 role in forcibly removing the indigenous Karen community from land designated as national park land and burning down their homes and other property. As testified to in this court action, Wuth Boonlert had previously testified to the National Human Rights Commission about the forced removal and the destruction of Karen homes at Chaiwat Limlikhit-aksorn’s direction. Samak Donnapee testified in this action that he and Chaiwat Limlikhit-aksorn had also known each other professionally over the years and that, in 2014, Samak Donnapee (then a more senior forestry officer) had recommended that Chaiwat Limlikhit-aksorn be transferred to another district due to allegations he was involved in the disappearance of a Karen community activist. The criminal defamation charges in this case, particularly against Wuth Boonlert (who was only accused of sharing a Facebook post), appear to stem from this history. In accepting criminal charges from Chaiwat Limlikhit-aksorn and bringing its own criminal defamation charges as well, it appears that the State supported a prosecution that was intended to deter and punish rights activists.
While the trial itself was generally well conducted, the decision to bring charges was fundamentally flawed and inconsistent with the clear human rights law limits on prosecutions for defamation. In particular, the UN Human Rights Committee has stated that states should consider “the decriminalization of defamation” and that “in circumstances of public debate concerning public figures in the political domain and public institutions, the value placed by the [ICCPR] upon uninhibited expression is particularly high” and that therefore “a public interest in the subject matter of the criticism should be recognized as a defence.” Here, the charges self-evidently had little basis — the Facebook posts never named Chaiwat Limlikhit-aksorn — and, importantly, constituted speech that was part of an important debate about government corruption and national land use, both matters of public interest. While the court’s decision to acquit both defendants is to be welcomed, this is a case that should never have gone to trial
Managing for Change: Achieving Systemic Reform Through the Effective Implementation of Networks for School Improvement
Get PDFIn August 2018, the Bill & Melinda Gates Foundation (“the foundation”) launched its Networks for School Improvement (NSIs) initiative. To further its own continuous learning as well as the learning of its grantees and the educational field, the foundation engaged the Center for Public Research and Leadership (CPRL) to conduct a formative evaluation of the NSIs initiative during its first two years. The research questions that guided this study were: How are network hubs implementing the Network for School Improvement (NSI) strategy? What are the characteristics of effective networks and network hubs?
To answer these questions, CPRL used a qualitative research design to deeply explore the work of nine networks representative of the broader pool of grantees. Selection was designed to ensure diversity with respect to the following characteristics: (a) geographic location, (b) number of schools in the network, (c) number of districts in the network, (d) grade band targeted, and (e) problem of practice. The findings presented in this paper emerge from an analysis of data collected from these networks across two years. In total, CPRL conducted over 160 interviews, observed 22 network convenings, and analyzed nearly 1,000 artifacts and documents
The Promise and Limits of Cyber Power in International Law: Remarks
Get PDFHi, everyone. I am Monica Hakimi from the University of Michigan Law School, and I would like to welcome you to our panel on cyber power and its limits. The topic almost does not need an introduction. We all know just from reading the news that our collective dependence on cyberspace is also a huge vulnerability, and state and non-state actors exploit this vulnerability to do one another harm. They use cyber technologies not just to spy on one another, but also, for example, to interfere in national elections, to steal trade secrets or other valuable information, to disrupt the activities of political, military, or economic institutions, and at times to cause physical destruction or death.
Moreover, because these technologies allow the perpetrators to obscure their identities or the full effects of their operations, the people and institutions that are affected do not always have the relevant information to protect themselves from future attacks or to respond
Long-Term Bias
Get PDFAn emerging consensus in certain legal, business, and scholarly communities maintains that corporate managers are pressured unduly into chasing short-term gains at the expense of superior long-term prospects. The forces inducing managerial myopia are easy to spot, typically embodied by activist hedge funds and Wall Street gadflies with outsized appetites for next quarter’s earnings. Warnings about the dangers of “short termism” have become so well established, in fact, that they are now driving changes to mainstream practice, as courts, regulators and practitioners fashion legal and transactional constraints designed to insulate firms and managers from the influence of investor short-termism. This Article draws on academic research and a series of case studies to advance the thesis that the emergent folk wisdom about short-termism is incomplete. A growing literature in behavioral finance and psychology now provides sound reasons to conclude that corporate managers often fall prey to long-term bias – excessive optimism about their own long-term projects. We illustrate several plausible instantiations of such biases using case studies from three prominent companies where managers have arguably succumbed to a form of “long-termism” in their own corporate stewardship. Unchecked, long-termism can impose substantial costs on investors that are every bit as damaging as short-termism. Moreover, we argue that long-term managerial bias sheds considerable light on the paradox of why short-termism evidently persists among supposedly sophisticated financial market participants: Shareholder activism – even if unambiguously myopic – can provide a symbiotic counter-ballast against managerial long-termism. Without a more definitive understanding of the interaction between short- and long-term biases, then, policymakers should be cautious about embracing reforms that focus solely on half of the problem