New York Law School

This article suggests an alternative way of thinking about the role of law at the time of divorce. It is concerned primarily with the impact of the legal system on negotiations and bargaining that occur outside the courtroom. We see the primary function of contemporary divorce law not as imposing order from above, but rather as providing a framework within which divorcing couples can themselves determine their postdissolution rights and responsibilities. This process by which parties to a marriage are empowered to create their own legally enforceable commitments is a form of "private ordering."

The United States has many banks that are small relative to large corporations and play a limited role in corporate governance, and a well developed stock market with an associated market for corporate control. In contrast, Japanese and German banks are fewer in number but larger in relative size and are said to play a central governance role. Neither country has an active market for corporate control. We extend the debate on the relative efficiency of bank- and stock market-centered capital markets by developing a further systematic difference between the two systems: the greater vitality of venture capital in stock market-centered systems. Understanding the link between the stock market and the venture capital market requires understanding the contractual arrangements between entrepreneurs and venture capital providers; especially, the importance of the opportunity to enter into an implicit contract over control, which gives a successful entrepreneur the option to reacquire control from the venture capitalist by using an initial public offering as the means by which the venture capitalist exits from a portfolio investment. We also extend the literature on venture capital contracting by offering an explanation for two central characteristics of the U.S. venture capital market: relatively rapid exit by venture capital providers from investments in portfolio companies; and the common practice of exit through an initial public offering.

Why do nations obey international law? This remains among the most perplexing questions in international relations. Nearly three decades ago, Louis Henkin asserted that "almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time."' Although empirical work since then seems largely to have confirmed this hedged but optimistic description, scholars have generally avoided the causal question: If transnational actors do generally obey international law, why do they obey it, and why do they sometimes disobey it?

Past research indicates that legitimacy encourages compliance with the law. This study extends consideration of the influence of legitimacy by exploring its impact on cooperation with the police and with neighbors to combat crime in one's community. It uses a panel study design and focuses upon the residents of New York City. The study finds that legitimacy shapes cooperation with the police and has a lesser influence on cooperation with others in the community. Consistent with the findings of prior research, legitimacy itself is found to be linked to the justice of the procedures used by the police to exercise their authority. Finally, the study explores the influence of personal experience with the police on legitimacy and cooperation. Results suggest that experiencing procedural justice during a personal experience increases legitimacy, irrespective of the favorability of the outcome. These results suggest that the police can generally enhance their legitimacy by using fair procedures.

Abstract In a capitalist economy, taxes are the most significant instrument by which the political system can put into practice a conception of economic justice. But conventional ideas about what constitutes tax fairness--found in the vigorous debates about tax policy going on in political and public policy circles, in economics and law--are misguided. In particular, the emphasis on distributing the tax burden relative to pretax income is a fundamental mistake. Taxation does not take from people what they already own. Property rights are the product of a set of laws and conventions, of which the tax system forms a central part, so the fairness of taxes can’t be evaluated by their impact on preexisting entitlements. Pretax income has no independent moral significance. Standards of justice should be applied not to the distribution of tax burdens but to the operation and results of the entire framework of economic institutions. The result is an entirely different understanding of a host of controversial issues, such as the estate tax, the tax treatment of marriage, “flat” versus progressive taxes, consumption versus income taxes, tax cuts for the wealthy, and negative income taxes for the poor.

This section looks back to some ground-breaking written contributions to public health, reproducing them in their original form and adding a commentary on their significance from a modern-day perspective. To complement the theme of this month's Bulletin, Frank Grad comments on the Preamble to the Constitution of the World Health Organization (1). The Constitution was presented at the International Health Conference in New York on 22 July 1946 and signed by the duly authorized representatives of the governments participating. The original version of the document, including the ornate and sometimes hesitant signatures, can be seen at http://www.who.int/library/historical/access/who/index.en.shtml ********** In February 1946 the Economic and Social Council of the United Nations established a Technical Preparatory Committee of Experts to prepare an agenda for the International Health Conference in New York, to be held from 19 to 22 July 1946. The agenda included the preparation of a constitution for a World Health Organization (WHO) (2). The Conference eventually approved the WHO Constitution on 22 July, and designated an Interim Commission to carry out essential public health activities until the new organization was established. The Interim Commission was to discharge the functions and duties of the Office Internationale d'Hygiene Publique, as well as those of the Health Organization that had been part of the Economic and Social Council of the defunct League of Nations. Though much of the work of the League's Health Organization was continued, and its major contributions recognized, the Constitution of WHO owes little to the League of Nations Covenant. Article XXIII of this Covenant contains a list of beneficial provisions, and only in its last subdivision, as an afterthought, one on how members of the League (f) would endeavor to take steps in matters of international concern for the prevention and control of disease. (3). The Constitution approved by the International Health Conference has shown itself to be robust during the 54 years since it came into effect. Nowhere is its strength more clearly seen than in its Preamble. This part of a legal constitutional document has an important function: it states the principles on which the document is based, and implicitly asserts a claim to jurisdiction which may then be spelt out in the document itself. Unlike the mixture of subjects enumerated in the Conventions of the League of Nations, the Preamble of the WHO Constitution is a masterfully coherent statement, claiming as its own the full area of contemporary international public health. In the same spirit as the Charter of the United Nations, the Preamble asserts that the principles it states are basic to the happiness, harmonious relations and security of all peoples, thus expressing a modern set of universal aspirations. Health, it says, is an essential condition for their attainment, and the highest possible attainment of health is a fundamental right of every human being without distinction of any kind. The preamble defines health positively, as complete physical, mental and social well-being, not merely negatively as the absence of disease or infirmity. The concept of public health is contemporary, but in its phrasing the Preamble echoes the rhetorical cadences of the Age of Reason in the last part of the 18th century. In this view certain rights--such as those to health, or to life, liberty and the pursuit of happiness--cannot be granted or denied by any government because they are fundamental, inalienable human rights, which all of us, being human, already have. 1948, the year that WHO came into existence after 26 Member States had ratified its Constitution, is also the year that the United Nations General Assembly adopted and proclaimed the Universal Declaration of Human Rights (4). The Preamble goes on to analyse the obligation of nations to contribute to the health of their people. …

Discussions of public trust and confidence in the police and the courts often assume that the key to public feelings is the public's evaluation of the outcomes that the public receives from these legal authorities. In the case of the courts, discontent is often assumed to be linked to issues of cost and delay-instrumental concerns about the outcomes delivered to the public by the courts. In the case of the police, the inability to effectively control crime is frequently seen as driving public evaluations. This article presents an alternative procedural justice based model that links public trust and confidence to views about the manner in which legal authorities treat the public. Drawing upon psychological research about public evaluations of institutions and authorities it is argued that the key issue that shapes public views is a process based evaluation of the fairness of the procedures that the police and courts use to exercise their authority. Analyses from several studies exploring the basis of public views support this procedural justice based model of public evaluation. In addition, the results provide suggestions about the elements of procedures that are central to public judgments about their fairness.

Law enforcement agencies are increasingly using predictive policing systems to forecast criminal activity and allocate police resources. Yet in numerous jurisdictions, these systems are built on data produced during documented periods of flawed, racially biased, and sometimes unlawful practices and policies (“dirty policing”). These policing practices and policies shape the environment and the methodology by which data is created, which raises the risk of creating inaccurate, skewed, or systemically biased data (“dirty data”). If predictive policing systems are informed by such data, they cannot escape the legacies of the unlawful or biased policing practices that they are built on. Nor do current claims by predictive policing vendors provide sufficient assurances that their systems adequately mitigate or segregate this data. In our research, we analyze thirteen jurisdictions that have used or developed predictive policing tools while under government commission investigations or federal court monitored settlements, consent decrees, or memoranda of agreement stemming from corrupt, racially biased, or otherwise illegal policing practices. In particular, we examine the link between unlawful and biased police practices and the data available to train or implement these systems. We highlight three case studies: (1) Chicago, an example of where dirty data was ingested directly into the city’s predictive system; (2) New Orleans, an example where the extensive evidence of dirty policing practices and recent litigation suggests an extremely high risk that dirty data was or could be used in predictive policing; and (3) Maricopa County, where despite extensive evidence of dirty policing practices, a lack of public transparency about the details of various predictive policing systems restricts a proper assessment of the risks. The implications of these findings have widespread ramifications for predictive policing writ large. Deploying predictive policing systems in jurisdictions with extensive histories of unlawful police practices presents elevated risks that dirty data will lead to flawed or unlawful predictions, which in turn risk perpetuating additional harm via feedback loops throughout the criminal justice system. The use of predictive policing must be treated with high levels of caution and mechanisms for the public to know, assess, and reject such systems are imperative.

Public international law hovers between cosmopolitan ethos and technical specialization. Recently, it has differentiated into functional regimes such as ‘trade law’, ‘human rights law’, ‘environmental law’ and so on that seek to ‘manage’ global problems efficiently and empower new interests and forms of expertise. Neither of the principal legal responses to regime‐formation – constitutionalism and pluralism – is adequate, however. The emergence of regimes resembles the rise of nation States in the late nineteenth century. But if nations are ‘imagined communities’, so are regimes. Reducing international law to a mechanism to advance functional objectives is vulnerable to the criticisms raised against thinking about it as an instrument for state policy: neither regimes nor states have a fixed nature or self‐evident objectives. They are the stories we tell about them. The task for international lawyers is not to learn new managerial vocabularies but to use the language of international law to articulate the politics of critical universalism.

Capital is the defining feature of modern economies, yet most people have no idea where it actually comes from. What is it, exactly, that transforms mere wealth into an asset that automatically creates more wealth? Katharina Pistor explains how capital is created behind closed doors in the offices of private attorneys, and why this little-known fact is one of the biggest reasons for the widening wealth gap between the holders of capital and everybody else. She argues that the law selectively “codes” certain assets, endowing them with the capacity to protect and produce private wealth. With the right legal coding, any object, claim, or idea can be turned into capital – and lawyers are the keepers of the code. She describes how they pick and choose among different legal systems and legal devices for the ones that best serve their clients’ needs, and how techniques that were first perfected centuries ago to code landholdings as capital are being used today to code stocks, bonds, ideas, and even expectations – assets that exist only in law.

In a continuing attempt to explain the emergence of new strategies of crime control in the UK and USA, a theory of cultural adaptation is developed. The paper argues that the political and policy shifts of recent years have been conditioned by prior changes that have occurred at the level of social structures and cultural sensibilities. A historical account of these changes is outlined, together with a characterization of the culture of high crime societies.

The rise of “Big Data” analytics in the private sector poses new challenges for privacy advocates. Through its reliance on existing data and predictive analysis to create detailed individual profiles, Big Data has exploded the scope of personally identifiable information (“PII”). It has also effectively marginalized regulatory schema by evading current privacy protections with its novel methodology. Furthermore, poor execution of Big Data methodology may create additional harms by rendering inaccurate profiles that nonetheless impact an individual’s life and livelihood. To respond to Big Data’s evolving practices, this Article examines several existing privacy regimes and explains why these approaches inadequately address current Big Data challenges. This Article then proposes a new approach to mitigating predictive privacy harms—that of a right to procedural data due process. Although current privacy regimes offer limited nominal due process-like mechanisms, a more rigorous framework is needed to address their shortcomings. By examining due process’s role in the Anglo-American legal system and building on previous scholarship about due process for public administrative computer systems, this Article argues that individuals affected by Big Data should have similar rights to those in the legal system with respect to how their personal data is used in such adjudications. Using these principles, this Article analogizes a system of regulation that would provide such rights against private Big Data actors.

A meta-analysis was conducted to determine whether nonexperimental studies revealed an association between men's pornography consumption and their attitudes supporting violence against women. The meta-analysis corrected problems with a previously published meta-analysis and added more recent findings. In contrast to the earlier meta-analysis, the current results showed an overall significant positive association between pornography use and attitudes supporting violence against women in nonexperimental studies. In addition, such attitudes were found to correlate significantly higher with the use of sexually violent pornography than with the use of nonviolent pornography, although the latter relationship was also found to be significant. The study resolves what appeared to be a troubling discordance in the literature on pornography and aggressive attitudes by showing that the conclusions from nonexperimental studies in the area are in fact fully consistent with those of their counterpart experimental studies. This finding has important implications for the overall literature on pornography and aggression.

The orthodox justification for intellectual property is utilitarian. Advocates for strong IP rights argue that absent such rights copyists will free-ride on the efforts of creators and stifle innovation. This orthodox justification is logically straightforward and well reflected in the law. Yet a significant empirical anomaly exists: the global fashion industry, which produces a huge variety of creative goods without strong IP protection. Copying is rampant as the orthodox account would predict. Yet innovation and investment remain vibrant. Few commentators have considered the status of fashion design in IP law. Those who have almost uniformly criticize the current legal regime for failing to protect apparel designs. But the fashion industry itself is surprisingly quiescent about copying. Firms take steps to protect the value of trademarks, but appear to accept appropriation of designs as a fact of life. This diffidence about copying stands in striking contrast to the heated condemnation of piracy and associated legislative and litigation campaigns in other creative industries. Why, when other major content industries have obtained increasingly powerful IP protections for their products, does fashion design remain mostly unprotected - and economically successful? The fashion industry is a puzzle for the orthodox justification for IP rights. This paper explores this puzzle. We argue that the fashion industry counter-intuitively operates within a low-IP equilibrium in which copying does not deter innovation and may actually promote it. We call this the piracy paradox. This paper offers a model explaining how the fashion industry's piracy paradox works, and how copying functions as an important element of and perhaps even a necessary predicate to the industry's swift cycle of innovation. In so doing, we aim to shed light on the creative dynamics of the apparel industry. But we also hope to spark further exploration of a fundamental question of IP policy: to what degree are IP rights necessary to induce innovation? Are stable low-IP equilibria imaginable in other industries as well? Part I describes the fashion industry and its dynamics and illustrates the prevalence of copying in the industry. Part II advances an explanation for the piracy paradox that rests on two features: induced obsolescence and anchoring. Both phenomena reflect the status-conferring power of fashion, and both suggest that copying, rather than impeding innovation and investment, promotes them. Part II also considers, and rejects, alternative explanations of the endurance of the low-IP status quo. Part III considers extensions of our arguments to other fields. By examining copyright's negative space - those creative endeavors that copyright does not address - we argue can we can better understand the relationship between copyright and innovation.

For lesbian, gay, bisexual, and transgender (LGBT) youth, coming out (i.e., disclosure of LGBT identity to others) can be a key developmental milestone, one that is associated with better psychological well-being. However, this greater visibility may come with increased risk of peer victimization. Being out, therefore, may reflect resilience and may unfold differently depending on ecological context as some spaces may be more or less supportive of LGBT youth than others. This article explores a model of risk and resilience for outness among LGBT youth, including whether it varies by community context. We tested our hypothesized model with a national dataset of 7,816 LGBT secondary school students using multi-group structural equation modeling. Consistent with our hypotheses, outness was related to higher victimization but also to higher self-esteem and lower depression. Greater victimization was related to negative academic outcomes directly and indirectly via diminished well-being. The increases in victimization associated with outness were larger for rural youth, and benefits to well-being partly compensated for their lower well-being overall. This article suggests that being out reflects resilience in the face of higher risk of victimization, in addition to promoting well-being in other ways. Nonetheless, contextual factors influence how this model operates among LGBT youth.

Justice and Nature THOMAS NAGEL THOMAS NAGEL **School of Law, New York UniversityNY, USA Search for other works by this author on: Oxford Academic Google Scholar Oxford Journal of Legal Studies, Volume 17, Issue 2, Summer 1997, Pages 303–321, https://doi.org/10.1093/ojls/17.2.303 Published: 01 July 1997

In Nonsense upon Stilts¸ first published in 1987, Waldron includes and discusses extracts from three classic critiques of the idea of natural rights embodied in the 1789 Declaration of the Rights of Man and the Citizen. Each text is prefaced by an historical introduction and an analysis of its main themes. The collection as a whole in introduced with an essay tracing the philosophical background to the three critiques as well as the eighteenth-century idea of natural rights which they attacked. But the point of reproducing these works is not merely historical. Modern attacks on 'rights-based' political philosophy mirror the concerns of Bentham, Burke and Marx. Jeremy Waldron has therefore added an extensive concluding essay which relates these classic texts to the modern discussion of rights and re-examines the idea of rights in the light of contemporary critiques. This text provides an invaluable teaching tool for courses in politics and philosophy.

The use of big data research methods has grown tremendously over the past five years in both academia and industry. As the size and complexity of available datasets has grown, so too have the ethical questions raised by big data research. These questions become increasingly urgent as data and research agendas move well beyond those typical of the computational and natural sciences, to more directly address sensitive aspects of human behavior, interaction, and health. The tools of big data research are increasingly woven into our daily lives, including mining digital medical records for scientific and economic insights, mapping relationships via social media, capturing individuals’ speech and action via sensors, tracking movement across space, shaping police and security policy via “predictive policing,” and much more.

This paper explores how political theory may help us map algorithmic logics against different visions of the political. Drawing on Chantal Mouffe’s theories of agonistic pluralism, this paper depicts algorithms in public life in ten distinct scenes, in order to ask the question, what kinds of politics do they instantiate? Algorithms are working within highly contested online spaces of public discourse, such as YouTube and Facebook, where incompatible perspectives coexist. Yet algorithms are designed to produce clear “winners” from information contests, often with little visibility or accountability for how those contests are designed. In isolation, many of these algorithms seem the opposite of agonistic: much of the complexity of search, ranking, and recommendation algorithms is nonnegotiable and kept far from view, inside an algorithmic “black box.” But what if we widen our perspective? This paper suggests agonistic pluralism as both a design ideal for engineers and a provocation to understand algorithms in a broader social context: rather than focusing on the calculations in isolation, we need to account for the spaces of contestation where they operate.

Officiating bias is thought to contribute to home advantage. Recent research has shown that sports with subjective officiating tend to experience greater home advantage and that referees' decisions can be influenced by crowd noise, but little work has been done to examine whether individual referees vary in their home bias or whether biased decisions contribute to overall home advantage. We develop an ordinal regression model to determine whether various measures of home advantage are affected by the official for the match and by crowd size while controlling for team ability. We examine 5244 English Premier League (EPL) match results involving 50 referees and find that home bias differs between referees. Individual referees give significantly different levels of home advantage, measured as goal differential between the home and away teams, although the significance of this result depends on one referee with a particularly high home advantage (an outlier). Referees vary significantly and robustly in their yellow card and penalty differentials even excluding the outlier. These results confirm that referees are responsible for some of the observed home advantage in the EPL and suggest that home advantage is dependent on the subjective decisions of referees that vary between individuals. We hypothesize that individual referees respond differently to factors such as crowd noise and suggest further research looking at referees' psychological and behavioural responses to biased crowds.