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Labour and Democracy
No full textDemocracy has always been a central project of labour law, but it is all the more important today, with authoritarianism on the rise and democracy under threat across the globe. This chapter examines the relationship between labour law and democracy. It explores the central tension between democracy and labour under capitalism; traces how ideas and arguments about workplace democracy have evolved over time; and explores the relationship between workplace democracy and political democracy, including how and when unions serve as a bulwark against authoritarianism. Ultimately, it argues that a critical task for labour law scholarship is to rethink the body of law to better serve the goals of workplace democracy, economic democracy, and political democracy
AI Image Outputs in the style of ...
No full textLongstanding positive law and commentary hold that copyright does not protect literary or artistic style. Style is an “idea” freely available to teach or inspire other creators. For example, as one US court held, “Picasso may be entitled to a copyright on his portrait of three women painted in his Cubist motif. Any artist, however, may paint a picture of any subject in the Cubist motif, including a portrait of three women, and not violate Picasso’s copyright so long as the second artist does not substantially copy Picasso’s specific expression of his idea.” Under traditional US copyright approaches, the copying of artistic style, permissible in its own right, might figure in the infringement analysis of substantial similarity. As a federal district court held, in a case concerning an Eastward-looking variation on Saul Steinberg’s famous Westward-looking New Yorker magazine cover depicting a New Yorker’s myopic view of the world, “Even at first glance, one can see the striking stylistic relationship between the posters, and since style is one ingredient of ‘expression,’ this relationship is significant. Defendants’ illustration was executed in the sketchy, whimsical style that has become one of Steinberg’s hallmarks.” But even there, stylistic similarities alone will not warrant a finding of infringement; rather the defendant must have copied specific expressive elements as well
Optimal Regulatory Enforcement
No full textCriminal law applies to everyone, but regulations constrain only those who choose to participate in a regulated activity. Firms considering such participation face three choices: comply with imperfectly enforced rules, violate them, or stay out of the activity altogether. Importantly, regulators not only punish violators but also reward firms with a strong record of compliance. We show that the presence of compliance-contingent rewards in a regime with optional participation unsettles several tenets of the traditional optimal deterrence model: (1) the maximal sanction may not be optimal, (2) it may be optimal to over-deter violations, (3) the probability and magnitude of sanctions may be complements rather than substitutes, (4) more frequent audits may have lower enforcement costs, and (5) the pursuit of a common enforcement objective of raising the rate of compliance may lead to lower welfare even if the overall deterrence level is too low. We illustrate the practical relevance of our findings and conclude that optimal regulatory enforcement is significantly more challenging than the basic deterrence model suggests
Breaking Free: Strategies for Governments on Terminating Investment Treaties and Removing ISDS Provisions
Get PDFOur report, Breaking Free: Strategies for Governments on Terminating Investment Treaties and Removing ISDS Provisions, is a guidebook for government officials and policymakers on the reform or exit of the investment treaty regime that is currently impeding climate action and other national and global goals. The report includes the following: (1) strategies for exiting or reforming investment treaties and the legal consequences that follow; (2) eliminating ISDS exposure in national investment laws and contracts; (3) withdrawing from the International Centre for Settlement of Investment Disputes (ICSID) Convention and the minimal legal consequences of such action; (4) examples of country- and regional-specific processes that have led to the review and termination (or reform) of investment treaties to date; and (5) proposed text for a multilateral instrument on the termination of treaties, amending to remove investment protections in free trade agreements, and amending to remove ISDS provisions from investment treaties
Unstable Personalized Law
No full text“Personalized Law”is a remarkable book in its scope and creativity, inviting readers to imagine a radically different world of customized legal rules while challenging our assumption that current legal rules are depersonalized. Whether taken as a practical guide for developing more effective and equitable legal rules or as a thought experiment questioning our current notions of legal commands, it provides insights into the relationship between legal design and the policies underlying those laws.
In this Response, I address one type of first-stage prediction imperfection — the instability of intrapersonal predictions across model iterations — and discuss its implications for personalized law. While some prediction error is a necessary property of classification and prediction methods, I argue that this error, as it pertains to an individual’s prediction, may not be stable over iterations of the prediction model. As I will demonstrate in a particular setting below, small changes to the training set used to predict a borrower credit risk can produce different risk scores despite the stability of the overall model accuracy measure. If the prediction and classification functions we use to produce individual scores are unstable, this means that legal rules at the second stage, when tailored to reflect and individual’s score or classification, will also be unstable. Decisions made by model designers can produce varying legal rules for individuals even at the initial stage of model development; however, my focus is on the instability of predictions over time
Contractual Landmines
Get PDFConventional wisdom is that the standardized boilerplate terms used in large commercial markets survive unchanged because they are an optimal solution to the contracting problems facing parties in these markets. As Smith and Warner explained, “harmful heuristics, like harmful mutations, will die out.” But an examination of a sample of current sovereign bond contracts reveals numerous instances of harmful landmines — some are deliberate changes to standard language that increase a creditor’s nonpayment risk, others are blatant drafting errors, and yet others are inapt terms that have been carelessly imported from corporate transactions. Moreover, these landmines differ from each other in important respects: deliberate changes to the standard form reflect strategic lawyering on behalf of sovereign clients, while errors that only benefit subsequent activists reflect haste in adapting precedents to new transactions. Using both quantitative data and interviews with market participants, we find that the conventional view fails to recognize the unique and distorting role that lawyers play in the drafting of standard form contracts. Systematic asymmetries in the market for the lawyers who negotiate and draft these contracts explain why real-world contracts depart from the efficient contract paradigm
The Foreshadow Docket
Get PDFImagine the Supreme Court issuing an emergency order that signals interest in departing from precedent, as if foreshadowing a change in the law. Seeing this, should the lower courts start ruling in ways that also anticipate the law of the future? They need not do so in their merits rulings. That much is clear. Such a signal does not create new binding precedent. Rather, it reflects the Justices’ guess about the future of the law — and what if that guess is wrong?
Yet for a lower court ruling on a temporary stay or injunction, the task seems to call for a guess about a future decision and hence a future state of the law. And if the Justices have already made such a guess in a parallel case, doesn’t the lower court have the answer it needs?
Not necessarily, this analysis shows. It looks closely at the architecture of stays and injunctions in the federal courts, while drawing upon ideas presented in a rich new compilation of essays, Philosophical Foundations of Precedent. Intriguing questions for theory arise, in turn. For instance, should an earlier judicial guess ever be deemed binding on a later guess? That would not be stare decisis, of course — but could there be such a thing as stare divinatis
Comparative Analysis of Prosecutor-Led Diversion Programs: Insights to Japan’s Suspension of Prosecution for Recidivism Prevention
Get PDFAround 60% of all crimes in Japan are committed by repeat offenders, and therefore preventing recidivism is a central concern in Japan. Recognizing the importance of early intervention, some prosecutors’ offices collaborate with social workers and provide necessary measures for recidivism prevention when prosecution is suspended. To promote prosecutor-led recidivism prevention, there is an ongoing discussion to legislate the approach currently taken by prosecutors’ offices. However, concerns remain about procedural fairness, transparency of prosecutorial discretion, and collaboration with other agencies. In the United States, prosecutor-led diversion programs are adopted in many states, with ongoing research on their effectiveness and challenges.
This paper intends to provide insights into the challenges Japan faces in utilizing suspension of prosecution for the purpose of recidivism prevention by analyzing prosecutor-led diversion programs in the United States. Part II of this paper explains the brief history and development of prosecutor-led recidivism prevention in Japan and introduces the identified challenges. Part III provides an overview of pretrial diversion programs in the United States and analyzes prosecutor-led diversion programs in Milwaukee, Wisconsin, and Cook County, Illinois. Part IV concludes with suggestions for Japanese current efforts, drawing from the analysis of programs in Milwaukee and Cook County. Suggestions include carefully explaining procedures to subject individuals, making eligibility criteria public to ensure transparency, and fostering better collaboration between prosecutors, defense attorneys, and welfare agencies
Researcher Access to Social Media Data: Lessons from Clinical Trial Data Sharing
Get PDFFor years, social media companies have sparred with lawmakers over how much independent access to platform data they should provide researchers. Sharing data with researchers allows the public to better understand the risks and harms associated with social media, including areas such as misinformation, child safety, and political polarization. Yet researcher access is controversial. Privacy advocates and companies raise the potential privacy threats of researchers using such data irresponsibly. In addition, social media companies raise concerns over trade secrecy: the data these companies hold and the algorithms powered by that data are secretive sources of competitive advantage. This Article shows that one way to navigate this difficult strait is by drawing on lessons from the successful governance program that has emerged to regulate the sharing of clinical trial data. Like social media data, clinical trial data implicates both individual privacy and trade secrecy concerns. Nonetheless, clinical trial data’s governance regime was gradually legislated, regulated, and brokered into existence, managing the interests of industry, academia, and other stakeholders. The result is a functionally successful (albeit imperfect) clinical trial data-sharing ecosystem. Part II sketches the status quo of researchers’ access to social media data and provides a novel taxonomy of the problems that arise under this regime. Part III reviews the legal structures governing sharing of clinical trial data and traces the history of scandals, investigations, industry protest, and legislative response that gave rise to the mix of mandated sharing and experimental programs we have today. Part IV applies lessons from clinical trial data sharing to social media data and charts a strategic course forward. Three primary lessons emerge: first, the benefits of research on otherwise secret data are cascading and unpredictable; second, law without institutions to implement the law is insufficient; and, third, data access regimes must be tailored to the different sorts of data they make available
Beyond Unprecedented S4 Ep0: Reintroducing Beyond Unprecedented – Season 4
Get PDFThe co-hosts kick off a fourth season of Beyond Unprecedented with Lauren Hirsch of The New York Times. They preview the season and discuss important economic and legal developments affecting companies, investors, and workers.https://scholarship.law.columbia.edu/beyond_unprecedented_4/1000/thumbnail.jp