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Money That Costs Too Much: Regulating Financial Incentives
Get PDFMoney 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; our field lacks the language we need to speak precisely about these behavioral phenomena, and we have not examined when and why motivational crowding-out should prompt us to discontinue or temper incentive based schemes. Without a clear and nuanced picture of the processes, harms, and benefits of crowding-out, we may well be missing the mark.
This Article canvasses the range of legal areas where crowding-out concerns arise, and it newly illuminates the specific harms that may be attributable to crowding-out effects. These hazards include reduced autonomy in the presence of incentives, a distinct set of behavioral inefficiencies, and the potential degradation of individual or social values. But this Article also challenges the view of crowding out as uniformly harmful, offering an alternative vision of potential crowding-out benefits, such as crowding out invidious motivations, increasing the predictability of agent activity, and bolstering the efficiency of future incentives. These benefits suggest that the precautionary principle, which would counsel against using incentives where crowding-out is possible – is inappropriate for this field.
The Article also proposes a novel taxonomy to help guide regulatory responses to incentives that cause crowding-out. Different categories of incentives present different justifications for regulatory intervention and redesign, including autonomy concerns, efficiency concerns, and negative externalities imposed on third parties. By organizing incentives based on the relationship between the principal and agent, we can identify opportunities for regulators and incentive architects to redesign or limit incentive programs, to leave incentives in place, or to consider discontinuing incentive-based policies when money indeed “costs too much” in motivation
China as a National Strategic Buyer : Toward a Multilateral Regime for Cross-Border M&A
Get PDFUnlike the case of cross-border trade, there is no explicit international governance regime for cross-border M&A; rather, there is a shared understanding that publicly traded companies are generally for purchase by any bidder – domestic or foreign – willing to offer a sufficiently large premium over a target’s stock market price. The unspoken premise that undergirds the system is that the prospective buyer is motivated by private economic gain-seeking.
The entry of China into the global M&A market threatens the fundamental assumptions of the current permissive international regime. China has become a significant player in the cross-border M&A market, particularly as an acquirer. The central claim of the article is that the cross-border M&A regime will require a new rules-of-the-game structure to take account of China’s ascension. This is because cross-border M&A with China introduces a new dimension: what we call the “national strategic buyer” (“NSB”), whose objective is to further the interests of a nation-state in the pursuit of industrial policy or out of national security concerns. Thus, China presents a problem of asymmetric motives in the global M&A market: sellers to Chinese firms have private motives for pursuing transactions, while at least some Chinese acquirers have non-economic motivations. Yet distinguishing commercial and financial motives from national strategic motives in Chinese firms is difficult.
To date, the only mechanisms for addressing the NSB problem are national security review mechanisms such as the CFIUS process in the United States, as recently expanded through legislative amendment. The EU is moving forward on a screening regulation with a similar objective that contemplates activity both by the European Commission and the Member States. Whether suitably tailored or not, these approaches fail to take on the long-term concern of fully assimilating China as a normal actor in the global economic system.
To address the NSB problem, we propose the adoption of a multilateral regime under which firms subject to potential government influence in their corporate decision-making must demonstrate their “eligibility” to engage in outbound M&A. For covered firms, the regime would require a commitment to exclusively commercial/financial motives in cross-border acquisitions, made credible through a corporate governance set-up featuring independent directors (selected by foreign investors) who publicly verify adherence and disclose the source of acquisition financing. Enforcement would consist of a secretariat that can evaluate eligibility and monitor post-acquisition conduct, and national legislation that would permit rejection of an acquisition of a local target by an acquirer that does not meet the eligibility criteria
Comments on Preliminary Draft 4 [black letter and comments]
Get PDFIn many respects, PD4 is a helpful synthesis of the law, likely to provoke less controversy than drafts of earlier Chapters. Nevertheless, we remain concerned about this draft’s, like its predecessors’, inconsistent treatment of legal issues. As in earlier drafts, this one sometimes traverses the line between restating positive law and “improving” it. In several instances, these departures from positive law adopt policy positions we would endorse in a different kind of endeavor, such as a “Principles” project, or an acknowledged advocacy piece. But we do not believe it accurate to characterize these departures, however substantively desirable, as “restating” the law (as opposed to revising it)
Union Rights for All: Toward Sectoral Bargaining in the United States
Get PDFAmerican 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
The Trump Administration and the Rule of Law
Get PDFWritten for a French audience in 2017, this article sought to frame the explosive issues about the Trump presidency in relation to the American trend to strong views of the unitary executive, that in the author\u27s view ignore the striking contrast between to propositions in Article II Section 2 of the Constitution, its only words defining presidential power. Made Commander in chief of the military, he is next given the power only to require the opinion in writing from the heads of the executive bodies Congress was expected to create how they intended to carry out the duties Congress had imposed on them. For the French audience, and subsequently published in France as Revue française d’administration publique no. 170, 2019, p. 433-446, the abstract read (also in translation):
American domestic government is created and defined by statute, not by the American Constitution. The Constitution’s limited text defining the American President’s authority in relation to that government suggests that his authority is that of oversight, not direct command. In the last half century, this article reflects, Presidents as diverse as Reagan, Clinton and Obama have attempted to extend their authority in the direction of command. Written one year after President Trump’s inauguration, the article argues that the current President has dramatically continued this trend, acting as if a monarch. Presidential authority is unchecked and ventures away from any commonly shared interpretation of the constitutional rule of law
Annual Report 2018
Get PDFWe are excited to update you after a very active 2018, which brought about positive change here at the Millstein Center
The Free Speech Century
No full textThe Supreme Court\u27s 1919 decision in Schenck vs. the United States is one of the most important free speech cases in American history. Written by Oliver Wendell Holmes, it is most famous for first invoking the phrase clear and present danger. Although the decision upheld the conviction of an individual for criticizing the draft during World War I, it also laid the foundation for our nation\u27s robust protection of free speech. Over time, the standard Holmes devised made freedom of speech in America a reality rather than merely an ideal.
In The Free Speech Century, two of America\u27s leading First Amendment scholars, Lee C. Bollinger and Geoffrey R. Stone, have gathered a group of the nation\u27s leading constitutional scholars – Cass Sunstein, Lawrence Lessig, Laurence Tribe, Kathleen Sullivan, Catherine McKinnon, among others – to evaluate the evolution of free speech doctrine since Schenk and to assess where it might be headed in the future. Since 1919, First Amendment jurisprudence in America has been a signal development in the history of constitutional democracies – remarkable for its level of doctrinal refinement, remarkable for its lateness in coming (in relation to the adoption of the First Amendment), and remarkable for the scope of protection it has afforded since the 1960s. Over the course of The First Amendment Century, judicial engagement with these fundamental rights has grown exponentially. We now have an elaborate set of free speech laws and norms, but as Stone and Bollinger stress, the context is always shifting. New societal threats like terrorism, and new technologies of communication continually reshape our understanding of what speech should be allowed.
Publishing on the one hundredth anniversary of the decision that laid the foundation for America\u27s free speech tradition, The Free Speech Century will serve as an essential resource for anyone interested in how our understanding of the First Amendment transformed over time and why it is so critical both for the United States and for the world today.https://scholarship.law.columbia.edu/books/1358/thumbnail.jp
On Constructing a Knowledge Base of Chinese Criminal Cases
Get PDFWe are developing a knowledge base over Chinese judicial decision documents to facilitate landscape analyses of Chinese Criminal Cases. We view judicial decision documents as a mixed-granularity semi-structured text where different levels of the text carry different semantic constructs and entailments.We use a combination of context-sensitive grammar, dependency parsing and discourse analysis to extract a formal and interpretable representation of these documents. Our knowledge base is developed by constructing associations between different elements of these documents. The interpretability is contributed in part by our formal representation of the Chinese criminal laws, also as semi-structured documents. The landscape analyses utilizes these two representations and enables a law researcher to ask legal pattern analysis queries
International Arbitration: Out of the Shadows
Get PDFThis article discusses a diverse number of issues that have affected the strength and popularity of international arbitration among its users. It emphasises the importance of the arbitration community recognising the force and validity of a number of critiques of the process and developing strategies for dealing with them. It is an edited version of a Keynote Address delivered at the ADR in Asia Conference on 29 October 2018
Briefing for Civil Society Organizations – Understanding Commercial Eucalyptus Plantations: How Do They Work and What Are Their Environmental Impacts?
Get PDFIf a company wants to use a community’s land for eucalyptus plantations, the community should think carefully about whether this is a good idea. Civil society organizations that support communities can use this briefing to help communities understand the potential environmental impacts the community should be aware of. The briefing explains plantation forestry and the life-cycle of eucalyptus tree plantations. It also notes the different possible negative environmental impacts of eucalyptus plantations before exploring how this information can be factored into community decision-making about a proposed eucalyptus plantation. While the briefing focuses on eucalyptus plantations, a lot of it will also be relevant for other types of tree plantations