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BU S2E04
No full textPhoto of Alejandro Gerrero.https://scholarship.law.columbia.edu/beyond_unprecedented_podcast/1029/thumbnail.jp
Cleaning Corporate Governance
Get PDFAlthough empirical scholarship dominates the field of law and finance, much of it shares a common vulnerability: an abiding faith in the accuracy and integrity of a small, specialized collection of corporate governance data. In this paper, we unveil a novel collection of three decades’ worth of corporate charters for thousands of public companies, which shows that this faith is misplaced.
We make three principal contributions to the literature. First, we label our corpus for a variety of firm- and state-level governance features. Doing so reveals significant infirmities within the most well-known corporate governance datasets, including an error rate exceeding eighty percent in the G-Index, the most widely used proxy for “good governance” in law and finance. Correcting these errors substantially weakens one of the most well-known results in law and finance, which associates good governance with higher investment returns. Second, we make our corpus freely available to others, in hope of providing a long-overdue resource for traditional scholars as well as those exploring new frontiers in corporate governance, ranging from machine learning to stakeholder governance to the effects of common ownership. Third, and more broadly, our analysis exposes twin cautionary tales about the critical role of lawyers in empirical research, and the dubious practice of throttling public access to public records
How Rights Went Wrong: Why Our Obsession with Rights is Tearing America Apart
No full textYou have the right to remain silent – and the right to free speech. The right to worship, and to doubt. The right to be free from discrimination, and to hate. The right to life, and the right to own a gun.
Rights are a sacred part of American identity. Yet they also are the source of some of our greatest divisions. We believe that holding a right means getting a judge to let us do whatever the right protects. And judges, for their part, seem unable to imagine two rights coexisting – reducing the law to winners and losers. The resulting system of legal absolutism distorts our law, debases our politics, and exacerbates our differences rather than helping to bridge them.
As renowned legal scholar Jamal Greene argues, we need a different approach – and in How Rights Went Wrong, he proposes one that the Founders would have approved. They preferred to leave rights to legislatures and juries, not judges, he explains. Only because of the Founders’ original sin of racial discrimination – and subsequent missteps by the Supreme Court – did courts gain such outsized power over Americans’ rights. In this paradigm-shifting account, Greene forces readers to rethink the relationship between constitutional law and political dysfunction and shows how we can recover America’s original vision of rights, while updating them to confront the challenges of the twenty-first century.https://scholarship.law.columbia.edu/books/1301/thumbnail.jp
Procedures for the Enforcement of New York Convention Awards
Get PDFArticle III of the New York Convention expresses the Contracting States’ core obligation under the Convention, namely the obligation to enforce Convention awards, absent a basis in the Convention for declining to do so. At the same time, the Convention drafters chose not to prescribe the manner in which such enforcement should take place. Article III expressly reserved the matter to the law of the place where enforcement under the Convention is sought.
Enforcement was to be achieved “in accordance with the rules of procedure of the territory where the award is relied upon.” The only limitations on the freedom of Contracting States in this regard is that they may not impose “substantially more onerous conditions or higher fees or charges on the recognition or enforcement of arbitral awards to which this Convention applies than are imposed on the recognition or enforcement of domestic arbitral awards.”
Article III raises two fundamental questions. The first is simply a matter of treaty construction. What rules qualify as “rules of procedure” for Article III purposes? The second and related question is precisely what limits, if any, does the Convention impose on Contracting States in the exercise of their procedural latitude under Article III
Authoring the Law
Get PDFCopyright law denies protection to legal texts through a rule known as the “government edicts doctrine”. Entirely a creation of nineteenth century courts, the government edicts doctrine treats expression produced by lawmakers in the exercise of their lawmaking function as altogether uncopyrightable. Despite having been in existence for over a century, the doctrine remains shrouded in significant mystery and complexity. Lacking statutory recognition, the doctrine has come to be seen as driven by open-ended considerations of “public policy” that draw on the overarching importance of public access to laws. In its decision in Georgia v. Public.Resource.Org., Inc., the Supreme Court reaffirmed the continuing significance of the doctrine but refused to endorse the public policy justification commonly offered for its existence, preferring instead to root it in copyright’s principle of authorship. In so doing however, the Court refrained from explicating the connection between authorship and the government edicts doctrine, contributing to the doctrine’s mystery.
This Article develops a theory of the government edicts doctrine that anchors it firmly to the principle of authorship. The authorship rationale for the government edicts doctrine is rooted in a “personalization mismatch”: whereas authorship in copyright law is predicated on the need to personalize a work by identifying the human actor that created it, a commitment to the rule of law necessitates that lawmaking and legal directives be impersonal and derive their authority not from an identified individual. It is this basic mismatch which explains the government edicts doctrine and its principled roots in copyright law rather than broader considerations of public policy. The Article traces the competing (and confusing) normative ideas that have influenced the evolution of the doctrine, develops the analytical basis of its connection to authorship, and shows how this connection enables the doctrine to be extended and applied to new forms and modes of law and lawmaking
Panel One: Classification and Access to National Security Information
Get PDFThis article is a transcript of the first panel of First Amendment Law Review’s 2021 Symposium on National Security, Whistleblowers, and the First Amendment, discussing classification and access to national security information
Reimagining Schools’ Role Outside the Family Regulation System
Get PDFThe United States’ family regulation system often begins with well-intentioned professionals making child protection hotline calls, jeopardizing their own ability to work with families and subjecting the families to surveillance. By the system’s own standards, most of this surveillance leads to no meaningful action. Nowhere is this reality more present than in schools. Educational personnel serve as the leading driver of child maltreatment allegations, yet decades worth of data reveal educator reports of maltreatment are the least likely to be screened-in and the least likely to be substantiated or confirmed. In other words, education personnel — whether motivated by genuine concern, which may nevertheless be informed by implicit biases towards low-income families and families of color; fear of liability; or the desire to access services they believe families cannot acquire elsewhere — overwhelm our child welfare system with unnecessary allegations of maltreatment.
This reality has fundamentally transformed the relationship between families and schools. Carrying the heavy burden of mandated reporting laws, public schools disproportionately refer Black and low-income families to the family regulation system, abdicating schools’ opportunity to serve these same families in the communities in which they reside. Rather than serving as the great equalizer, public schools increasingly contribute to the carceral state’s regulation of families.
This Article argues that schools must shift their role away from the reporting and surveillance of these families, and instead directly provide and arrange for services for families. This change begins with sharply limiting or repealing mandatory reporting obligations (permitting voluntary reports in severe cases) — but that is only the start. Schools are well-positioned to create new pathways to the supports and services from which most families reported to the family regulation system might actually benefit. Schools are already a primary source of food for impoverished children, and can help ensure low-income families access all the public benefits to which they are entitled. Schools can largely refer children and families to the same services that the family regulation system can — such as mental health services and substance abuse treatment — but without that system’s coercive authority and its associated problems. Where some services are tied to the family regulation system’s involvement, the law should permit schools to refer families directly. Schools know which families need legal services to defend their housing, access benefits, obtain orders of protection — or any of the myriad of other supports that poverty lawyers can provide. This shift would tie schools to the families and communities that they serve and benefit those families and communities far more than the surveillance and policing they experience under the current family regulation system
Climate Change and Innovation in Brazil: Threats and Opportunities
Get PDFIn recent decades, Brazil has adopted a political approach focused on maintaining economic stability and consolidating inclusive social policies. However, despite repeated attempts, little progress has been made in overcoming difficulties within the country and making Brazil more competitive in the global market. Nevertheless, there seems to be an awakening and a certain consensus among scholars of Brazilian problems that the expected inclusive economic growth cycle may be achieved if Brazil invests in enhancing the bioeconomy business environment through bioenergy and innovation.
The actual crisis is fast–tracking two major transformations at the global level: the energy transition and the information revolution, both dependent on innovation. Brazil showcases a comparative advantage for renewable energy sources in comparison to the rest of the world. Even considering the controversial major use of hydroelectricity and sugarcane biofuels, these sources are undoubtfully less harmful than fossil sources, such as coal and diesel. This could be an unprecedented opportunity. Nevertheless, Brazil has faced considerable environmental disasters in recent years, despite its consistent legal framework protecting the environment
Primer on International Investment Treaties and Investor-State Dispute Settlement
Get PDFWhat is Foreign Direct Investment (FDI)? FDI occurs when an individual or corporation in one country (“home state”) sets up or buys all or a significant part of a company that is incorporated in a different country (“host state”). Companies invest abroad to access land-based resources including mining, more affordable labour for instance in manufacturing, and new markets, among other reasons. Many countries seek to attract FDI in order to realize benefits in the form of tax revenues, technology transfer, jobs, and other economic linkages. The images below illustrate the concept of FDI, as well as some of the sectors and industries into which it flows
Regulating Antitrust Through Trade Agreements
Get PDFAntitrust law is one of the most commonly deployed instruments of economic regulation around the world. To date, over 130 countries have adopted a domestic antitrust law. These countries comprise developed and developing nations alike, and combined produce over 95 percent of the world’s GDP. Most of the countries that have adopted an antitrust law have done so since 1990. This period of significant proliferation of antitrust laws also coincides with a notable expansion of international trade agreements, including the creation of the World Trade Organization (WTO) in 1995 and the negotiation of numerous bilateral and multilateral trade agreements. These concurrent trends are consistent with the view that antitrust regulation and trade liberalization are complementary tools in governments’ efforts to create and preserve open and competitive markets