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Corporate Governance versus Real Governance
No full textThe rough coincidence of the 50th anniversary of Milton Friedman\u27s Sunday New York Times Magazine article, “The Social Responsibility of Business Is to Increase Its Profits,” with today\u27s movement advocating broader corporate purpose than maximizing shareholder value and stressing the public corporation\u27s obligation to other stakeholders raises the questions: to whom is the corporation accountable and for what? This essay broadly distinguishes different governance structures that oversee the corporation\u27s allocation and distributive decisions: on the one hand, how it goes about allocating investor capital and creating value; and on the other, whether it chooses to distribute the value it creates to stakeholders in ways that differ from the outcomes that would result from the labor and other various factor markets through which stakeholders provide their contributions. This distinction serves to underscore the difference between corporate governance, which effectively allocates accountability for the profitability of the corporation\u27s business to the market, and real governance, which vests accountability for distributive decisions ultimately in elected officials.
The author posts a warning against those who view today\u27s purpose-driven governance movement as a call for a shift back to a system of management and corporate governance that Alfred Chandler, in his iconic history of the development of the structure of large U.S. corporations, labeled “managerial capitalism.” Such a solution, as Chandler\u27s chronicles should warn us, are likely to leave us confronting the same problem with which his managerial capitalism left us: the replacement of the invisible hand of markets with the visible hand of a management hierarchy. And this in turn forces us back to the hard question: what systems hold Chandler\u27s management hierarchy accountable for its performance? The author argues that corporate governance and markets should continue to hold management accountable for creating efficiency and value, and that real governance, and ultimately the electorate, continue to be responsible — and if anything, assume greater responsibility — for “redistributive” decisions that override factor market allocations
Establishing New Permanent Family Relationships in United States and Nordic Child Protection Systems
No full textThis chapter focuses on the comparative creation of new parent and parent-like relationships across U.S. and Nordic child protection systems when authorities determine that parents and children cannot reunify. Creating new families and permanently ending others can represent the most drastic and emotionally fraught elements of state intervention in families, and one would expect the historic differences between the two nations to impact this area. Indeed, U.S. systems continue to use terminations of parental rights and involuntary adoptions far more frequently than Nordic countries. But the overall legal trends, and potential future developments, are more complex. In the United States, terminations of parental rights remain common, but other forms of permanency, especially guardianship, have grown in usage. In Nordic nations, terminations and adoptions remain rare, but nations have begun to question the number of placement disruptions in long-term foster care. U.S. law may provide a model for Nordic nations’ increasing focus on permanency: U.S. law has developed a spectrum of permanency options, providing alternatives to terminations of parental rights. Nordic countries\u27 historic focus on maintaining relationships between children in out-of-home care and their parents should lead to openness to permanency options that challenge the exclusivity of parenthood, such as guardianship, as well as post-adoption contact agreements. This option is evident in Sweden, which has no statutory mechanism for adoption but does provide for the equivalent of guardianship. The option is not prevalent in other Nordic countries – but developing it could provide an appropriate balance for their child protection systems’ historic commitment to respecting family bonds and newer focus on providing permanency
ERA Project Summary of Argument Before PA Supreme Court on Whether Medicaid Abortion Ban Amounts to Sex Discrimination
Get PDFOn October 26, 2022, the Pennsylvania Supreme Court heard oral arguments in Allegheny Reproductive Health Center v. Pennsylvania Department of Human Services, a case in which reproductive rights advocates have challenged the state’s ban on Medicaid funding for abortion (Coverage Ban), arguing that the ban violates the state constitution’s explicit prohibitions against sex discrimination
Columbia Law Experts Submit Two Briefs to Supreme Court in Free Speech/LGB Rights Case
Get PDFColumbia Law School faculty and policy teams submitted amicus briefs to the Supreme Court on Friday in 303 Creative v. Elenis, a case the Court will decide next term
The Fed Unbound: Central Banking in a Time of Crisis
No full textThe Federal Reserve, the U.S. central bank, was built for a monetary system composed primarily of investor-owned, government-chartered banks. But over the years, the erosion of banking law and the rise of alternative forms of money created outside of the banking system have pushed the Fed to take on more and more responsibilities to keep the economy out of recession, as it did during the 2008 crisis, and again during the first months of the COVID-19 pandemic, when it created $3 trillion to stop another financial panic.
Legal scholar and former Treasury official Lev Menand explains how the Fed did this, and argues that it is time to cure the disease that has plagued the American economy for decades, and not just rely on the Fed to treat its symptoms. The Fed Unbound is an urgent appeal to Congress to reform the U.S. economic and financial infrastructure.https://scholarship.law.columbia.edu/books/1332/thumbnail.jp
Accommodating Parents
Get PDFThe child protection legal system is supposed to work towards the reunification of parents and children in foster care through individualized services to help parents raise their children safely. But that legal system has long been criticized for frequent and severe invasions into the family integrity rights of parents with disabilities and their children, treating parental disabilities as grounds for permanent separation instead of individual characteristics to be accommodated. Several years ago, it seemed that the law was turning. In 2015, the U.S. Departments of Health and Human Services and Justice issued joint guidance stating that the Americans with Disabilities Act (ADA) applied to parents with disabilities in child protection cases. The joint guidance urged states to more effectively help reunify families with a disabled parent and prevent their separation in the first instance. A small number of state courts issued decisions requiring truly individualized accommodations for parents with disabilities. But those cases remain outliers. Sarah H. Lorr has done the child protection legal field an excellent service by outlining just how far it has left to go in her forthcoming article Unaccommodated: How the ADA Fails Parents
The Input Fallacy
Get PDFAlgorithmic credit pricing threatens to discriminate against protected groups. Traditionally, fair lending law has addressed such threats by scrutinizing inputs. But input scrutiny has become a fallacy in the world of algorithms.
Using a rich dataset of mortgages, I simulate algorithmic credit pricing and demonstrate that input scrutiny fails to address discrimination concerns and threatens to create an algorithmic myth of colorblindness. The ubiquity of correlations in big data combined with the flexibility and complexity of machine learning means that one cannot rule out the consideration of protected characteristics, such as race, even when one formally excludes them. Moreover, using inputs that include protected characteristics can in fact reduce disparate outcomes.
Nevertheless, the leading approaches to discrimination law in the algorithmic age continue to commit the input fallacy. These approaches suggest that we exclude protected characteristics and their proxies and limit algorithms to pre-approved inputs. Using my simulation exercise, I consider these approaches. I demonstrate that they fail on their own terms, are unfeasible, and overlook the benefits of accurate prediction. These failures are particularly harmful to marginalized groups and individuals because they threaten to perpetuate their historical exclusion from credit and, thus, from a central avenue to greater prosperity and equality.
I argue that fair lending law must shift to outcome-focused analysis. When it is no longer possible to scrutinize inputs, outcome analysis provides the only way to evaluate whether a pricing method leads to impermissible disparities. This is true not only under the le- gal doctrine of disparate impact, which has always cared about outcomes, but also under the doctrine of disparate treatment, which has historically avoided examining disparate outcomes. Now, disparate treatment too can no longer rely on input scrutiny and must be considered through the lens of outcomes. I propose a new framework that regulatory agencies, such as the Consumer Financial Protection Bureau, can adopt to measure disparities and fight discrimination. This proposal charts an empirical course for antidiscrimination law in fair lending and also carries promise for other algorithmic contexts, such as criminal justice and employment
Peaceful Resolution of Disputes
No full textThe contributions in this collection of the American Classics in International Law series, Peaceful Resolution of Disputes, edited by Lori Fisler Damrosch, present the most influential American ideas about dispute settlement. From Alexander Hamilton’s 1794 defense of arbitration, through 20th-century debates over the International Court of Justice and other international courts and tribunals, to contemporary controversies over law-of-the-sea dispute settlement, American leaders and scholars have promoted perspectives on dispute resolution shaped by the American experience. An introductory essay explores American ideas about dispute resolution in relation to war, the judicial role in resolving concrete controversies under law, and problems of institutional design.https://scholarship.law.columbia.edu/books/1345/thumbnail.jp
TTG 01
No full textPhoto of Alexis J. Hoag-Fordjour, Assistant Professor of Law & Co-director of the Center for Criminal Justice, Brooklyn Law School.https://scholarship.law.columbia.edu/through_the_gale_podcast/1007/thumbnail.jp
International Investment Law and the Extractive Industries
Get PDFAs of April 2022, the United Nations Conference on Trade and Development (UNCTAD) tallied 3,218 international investment treaties, of which 2,558 are in force. Investors in extractive industries (the oil, gas, and mining sectors) have used investor-state dispute settlement (ISDS) mechanisms embedded in these treaties to challenge a wide range of host state actions and inactions that have allegedly negatively affected their investments. Those claims, and the threats thereof, restrict states’ ability to maximize the benefits, and their ability to limit environmental and social harms, resulting from the exploitation of natural resources. This briefing note provides an introduction to international investment law, to assist stakeholders in grasping its diverse and significant implications for the governance of investments in extractive industries