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Beyond the Counterinsurgency Paradigm of Governing: Letting Go of Prediction and the Illusion of an Internal Enemy
Get PDFBernard E. Harcourt expands the thesis about the illusion of insurgency in the United States to the current day. What, he asks, could alter fraudulent and overblown perceptions about the sanctity and importance of the national security state? He suggests that the way forward might begin with relinquishing the institutionalized practice of predicting danger. How to do this and what the consequences might be for his three-pronged analysis of state counterinsurgency strategy provides fresh thinking for future analysis and policymaking
This Land Is Our Land: The Struggle for a New Commonwealth
No full textToday, we are at a turning point as we face ecological and political crises that are rooted in conflicts over the land itself. But these problems can be solved if we draw on elements of our tradition that move us toward a new commonwealth – a community founded on the well-being of all people and the natural world. In this brief, powerful, timely, and hopeful book, Jedediah Purdy, one of our finest writers and leading environmental thinkers, explores how we might begin to heal our fractured and contentious relationship with the land and with each other.
From the coalfields of Appalachia and the tobacco fields of the Carolinas to the public lands of the West, Purdy shows how the land has always united and divided Americans, holding us in common projects and fates but also separating us into insiders and outsiders, owners and dependents, workers and bosses. Expropriated from Native Americans and transformed by slave labor, the same land that represents a history of racism and exploitation could, in the face of environmental catastrophe, bind us together in relationships of reciprocity and mutual responsibility.
This may seem idealistic in our polarized time, but we are at a historical fork in the road, and if we do not make efforts now to move toward a commonwealth, Purdy warns, environmental and political pressures will create harsher and crueler conflicts – between citizens, between countries, and between humans and the rest of the world.https://scholarship.law.columbia.edu/books/1159/thumbnail.jp
Fiduciary Principles in Family Law
Get PDFFamily members bear primary responsibility for the care of dependent and vulnerable individuals in our society, and therefore family relationships are infused with fiduciary obligation. Most importantly, the legal relationship between parents and their minor children is best understood as one that is regulated by fiduciary principles. Husbands and wives relate to one another as equals under contemporary law, but this relationship as well is subject to duties of care and loyalty when either spouse is in a condition of dependency. Finally, if an adult is severely intellectually disabled or becomes incapacitated and in need of a guardian, a family member is often preferred to serve in this role. This chapter examines the application of fiduciary principles and doctrine to close family relationships. The chapter explains that while the parent-child and spousal relationships are governed by fiduciary principles and duties, enforcement of these duties (at least when family relationships are intact) is largely accomplished through informal bonding and monitoring mechanisms. In contrast, when family members become guardians of adult relatives, including elderly parents and disabled adult children, obligations are formally enforced under fiduciary law with minimal recognition of the family bond. The chapter examines the rationales for these contrasting approaches and questions whether adjustments are indicated. It concludes that modest relaxation of formal fiduciary obligations in the context of close family relationships might sometimes serve the interests of the incapacitated adult by supporting her relationship with the family guardian
Being True to \u3ci\u3eTrulia\u3c/i\u3e: Do Disclosure-Only Settlements in Merger Objection Lawsuits Harm Shareholders?
Get PDFA significant debate within mergers and acquisitions law concerns the explosive popularity of the “merger objection lawsuit” (MOL), a shareholder action seeking to enjoin an announced deal on fiduciary duty grounds. MOLs blossomed during the Financial Crisis, becoming popularly associated with “shareholder shakedowns,” whereby quick-triggered plaintiff attorneys would file against – and then rapidly settle with – acquirers, typically on non-monetary terms containing modest added disclosures in exchange for blanket class releases and attorney fee awards. This practice unleashed a torrent of criticism from lawyers, commentators, academics, and (ultimately) judges, culminating in a doctrinal shift in Delaware law in the January 2016 Trulia opinion, which virtually prohibited disclosure-only settlements. This paper investigates the implications of this doctrinal shock from a shareholder welfare perspective. We argue that – notwithstanding the intuitive appeal of prohibiting / discouraging disclosure settlements – it is far from clear whether doing so helps or hurts target shareholders ex ante, since the threat of MOLs interacts with other intra-corporate agency costs (such as those of managers and buyers negotiating deals). Reducing the credibility of a litigation threat may deter shakedowns at the cost of reduced deal premia and shareholder value – consequences inconsistent with conventional commitments of corporate law. We develop a theoretical model of company acquisitions formally demonstrating that the competing equilibrium effects of Trulia are indeterminate, an insight that hoists a flag of caution regarding the doctrinal innovation. Moreover, our model delivers testable implications related to Trulia, which we investigate empirically. Our empirical analysis suggests that the recent doctrinal shock does not appear to have resulted in a discernible increase to target shareholder welfare
Separation of Powers in Comparative Perspective: How Much Protection for the Rule of Law?
Get PDFThis chapter discusses the separation of powers. The point about traditions, or shared social norms, is a central one for this chapter. At a time of growing pessimism about the fate of democracy worldwide, adherence to norms of political behaviour may have an importance transcending formal provisions for the allocation of governmental power. As such, this chapter first presents a brief account of ‘separation of powers’ under American presidentialism; then the contrasting system of Westminster parliamentarianism; third, the increasingly prevalent mixed regimes, often semi-presidential, that can be described as ‘constrained parliamentarism’; and, finally, international institutions. As the chapter shows, in this most real of all possible worlds, the words of constitutions, written or implicit, matter considerably less than the actual distribution of effective power within a polity
Blind Spot: The Attention Economy and the Law
Get PDFHuman attention, valuable and limited in supply, is a resource. It has become commonplace, especially in the media and technology industries, to speak of an attention economy and of competition in attention markets.” There is even an attentional currency, the basic attention token, which purports to serve as a medium of exchange for user attention. Firms like Facebook and Google, which have emerged as two of the most important firms in the global economy, depend nearly exclusively on attention markets as a business model.
Yet despite the well-recognized commercial importance of attention markets, antitrust and consumer protection authorities have struggled when they encounter the attention economy. Antitrust agencies, tasked with assessing the effects of mergers and controlling anticompetitive behavior, seem to lack a way to understand the market dynamics when the firms offer free products that are actually competing for attention. Meanwhile, those tasked with consumer protection have no good paradigm for dealing with attentional intrusions stemming from non-consensual, intrusive advertising or debates over the use of telephones on airlines.
This essay aims to provide a legal and economic analysis to help face the challenges here described. In other work, I have described the rise and spread of the attention industry, the businesses that depend on the resale of attention, a global industry with an annual revenue of approximately $500 billion. This essay builds on that work by focusing on the economic decisions implicit in Attention Brokerage. As described here, brokerage is the resale of human attention. It is to attract attention by offering something to the public (entertainment, news, free services, and so on), and then reselling that attention to advertisers for cash. Examples of pure Attention Brokers include social media companies like Instagram and Facebook, search engines like Google or Bing, ad-supported publishers like Buzzfeed or AM News, and some television channels like CBS or NBC. The Brokers\u27 activities are critical to the operation of attention markets, for the business model creates much of the competition for attention that this essay describes
Governance and Public Transparency: The Brazilian Case
Get PDFAiming to provide an overall assessment of the impact of the Constitution of the Federative Republic of Brazil (“CFRB” - which is in effect since 1988), in the construction of a Democratic State of Law, over the past 30 years, this article investigates how the institutional improvements achieved took form, the transformation of the State\u27s role in the enforcement of human rights and individual guarantees, and the changes that took place towards a democratic political culture, both from the perspective of the citizen relating to the State and the citizen relating to the State\u27s external oversight body (“TCU” - Federal Audit Court). In this sense, this article highlights the circumstances in which the governance of the Federal Executive Branch has been formed in the past thirty years, in what pertains to its oversight, i.e., by analyzing some of the institutional arrangements obtained and the practices adopted in search of greater transparency and wider accountability for the public affairs. In this period, it is possible to assert that there has been progress in the oversight of the activities of the federal government, with a more institutionalized, direct and easier access by all Brazilians to the information of public entities, on the other hand there are not any consolidated or conclusive information regarding the quality of the information received by the citizens
Letter to Council Members Regarding Council Draft 3
Get PDFWe understand that the ALI Council will consider Council Draft 3 (CD3) of the Restatement of the Law, Copyright (Copyright Restatement) project at its meeting on October 17-18, 2019. The Council may not appreciate how controversial a project this is: the U.S. Copyright Office, the U.S. Patent and Trademark Office, the American Bar Association’s Section of Intellectual Property Law, the New York City Bar Association’s Committee on Copyright and Literary Property, academics and other Advisers and Liaisons have expressed serious concerns about this and previous Council Drafts and Preliminary Drafts; indeed, the Register of Copyrights deplored the project as a “pseudo version” of the copyright law. The broad-based criticisms the project has incurred should urge the Council to proceed with great caution
Abortion Talk
Get PDFPublic service announcements routinely note that one in eight women will be diagnosed with breast cancer. Advocates frequently invoke the twenty percent wage gap between men and women. And educational groups often cite the (more contested) statistic that one in five women will be sexually assaulted during college. But there is another data point not regularly part of public conversation: nearly one in four women will have an abortion by the age of forty-five. The widespread — but largely secret — practice of terminating pregnancies is what Carol Sanger wants us to talk about. As much as possible
Price and Prejudice: An Empirical Test of Financial Incentives, Altruism, and Racial Bias
Get PDFMany argue that paying people for good behavior can crowd out beneficial motivations like altruism. But little is known about how financial incentives interact with harmful motivations like racial bias. Two randomized vignette studies test how financial incentives affect bias. The first experiment varies the race of a hypothetical patient in need of a kidney transplant (black or white), an incentive (3,000, 50,000) and source (charity, government, or patient’s own funds). Incentives encouraged donation but were significantly more effective in encouraging donation to white patients. Biasing effects are most pronounced for medium-sized incentives. Incentives may have an inadvertent biasing effect for altruistic behavior