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Conundra of the Berne Convention Concept of the Country of Origin
Get PDFThis essay explores one of the most important, but occasionally intractable, issues under the Berne Convention, the concept of Country of Origin. Article 5(4) of that treaty defines a work’s country of origin, but leaves out several situations, leaving those who interpret and apply the treaty without guidance in ascertaining the country of origin. I will call those situations the “Conundra of the country of origin,” and will explore two of them here. First, what is the country of origin of an unpublished work whose authors are nationals of different countries? Second, what is the country of origin of a work exclusively made available over digital networks? In both situations, in the absence of treaty specification, the work may have multiple countries of origin. A plurality of countries of origin may be problematic because, under Berne art. 5(3) “Protection in the country of origin is governed by domestic law.” Berne minimum protections do not apply to local works in their countries of origin. As a result, the greater the number of countries of origin, the fewer the number of countries in which the work must receive the minimum Conventional coverage. Even where minimum protections may apply, variations in the country of origin can affect the calculus of copyright term under art. 7(8), the availability of coverage for works of applied art under art. 2(7), and claims to artists’ resale royalties under art. 14ter; in all those cases, the availability of protection turns not on national treatment, but on reciprocity with the country of origin
The Case for a Climate-Smart Update of the Africa Mining Vision
Get PDFThe 2009 Africa Mining Vision (AMV) provides guidance for the industrialization of African countries by leveraging their mining sector. However, the global context has changed since its adoption. As a result, it does not include guidance on how governments should embrace the climate change agenda as an opportunity for better and further industrialization, deeper linkages, and sustainable development.
There are many ways to look at the implications of international climate change policy for Africa, including through the increased extraction of minerals needed in clean energy application and the greening of mines. The localization of global value chains – induced by a rising carbon cost and by the desire to build resilience in supply chains in light of increased pandemic risks – provides another set of opportunities.
Seizing this momentum will require policy guidance to ensure that the relocation of industries in global value chains occurs upstream (closer to mineral sources) rather than downstream (closer to final consumers). An open acknowledgment of the impact of climate change on the shifting global value chains for critical minerals and the need to broaden the governance framework to include the emerging role of sustainability and ESG requirements should form the foundation for a revised and revitalized AMV.
Read our policy brief elaborating these suggested foundations as well as research directions for a climate-smart update of the AMV
Purchasing Submission: Conditions, Power, and Freedom
No full textThe federal government increasingly regulates by using money and other benefits to induce private parties and states to submit to its conditions. It thereby enjoys a formidable power, which sidesteps a wide range of constitutional and political limits.
Conditions are conventionally understood as a somewhat technical problem of “unconstitutional conditions” – those that threaten constitutional rights – but at stake is something much broader and more interesting. With a growing ability to offer vast sums of money and invaluable privileges such as licenses and reduced sentences, the federal government increasingly regulates by placing conditions on its generosity. In this way, it departs not only from the Constitution’s rights but also from its avenues of binding power, thereby securing submission to conditions that regulate, that defeat state laws, that commandeer and reconfigure state governments, that extort, and even that turn private and state institutions into regulatory agents.
The problem is expansive, including almost the full range of governance. Conditions need to be recognized as a new mode of power – an irregular pathway – by which government induces Americans to submit to a wide range of unconstitutional arrangements.
Purchasing Submission is the first book to recognize this problem. It explores the danger in depth and suggests how it can be redressed with familiar and practicable legal tools.https://scholarship.law.columbia.edu/books/1310/thumbnail.jp
Taking Appropriations Seriously
Get PDFAppropriations lie at the core of the administrative state and are becoming increasingly important as deep partisan divides have stymied substantive legislation. Both Congress and the President exploit appropriations to control government and advance their policy agendas, with the border wall battle being just one of several recent high-profile examples. Yet in public law doctrine, appropriations are ignored, pulled out for special legal treatment, or subjected to legal frameworks ill-suited for appropriations realities. This Article documents how appropriations are marginalized in a variety of public law contexts and assesses the reasons for this unjustified treatment. Appropriations’ doctrinal marginalization does not affect the political branches equally, but instead enhances executive branch and presidential power over appropriations at the expense of Congress. Yet legal doctrines governing appropriations should have the opposite effect because constitutional text, structure, and history make clear the central importance of Congress’s appropriations power. Appropriations’ doctrinal marginalization undermines the separation of powers even further by undercutting political accountability through Congress and creating de facto presidential spending authority, with the executive branch able to violate governing statutes on appropriations with minimal legal consequences. This Article then turns to the question of what taking appropriations seriously might mean for public law doctrine. It concludes that appropriations exceptionalism is not problematic if it reflects the realities of the appropriations process and does not downplay appropriations’ significance. Doctrines should attend to the separation of powers dynamics raised by appropriations and reinforce Congress’s power of the purse. Among other consequences, this leads to jurisdictional doctrines that put primacy on congressional enforcement of appropriations limits in court
Defending the Planet Ep1: The Biden Reset
Get PDFHours after taking the oath of office, President Joe Biden signed executive orders to return the United States to the Paris climate agreement and kill the Keystone XL pipeline. He has since revoked many of the Trump administration’s climate policies while launching an aggressive regulatory program of his own. His goals include cutting U.S. greenhouse gas emissions in half by 2030 and reaching net zero emissions by 2050. He also wants to put the U.S. back into a position of international leadership on climate issues. But are these goals realistic with a Congress that hasn’t passed major environmental legislation since 1990?
Former top EPA official Catherine McCabe ’77 and William S. Beinecke Professor of Law Jedediah S. Purdy join Michael B. Gerrard to explore how the partisan divide holds back the fight against global warming and whether executive action can break the long drought of climate legislation.https://scholarship.law.columbia.edu/defending_the_planet/1001/thumbnail.jp
Investigating the Contract Production Process
Get PDFContract law and theory have traditionally paid little attention to the processes by which contracts are made. Instead, contracts among sophisticated parties are assumed to be full articulations of the desires of the parties; whatever the process, the outcome is the same. This article compares sovereign debt contracts from US and UK firms, with different production processes, that are trying to do the same thing under very similar legal regimes. We find that that the production process likely matters quite a bit to the final form that contracts take
A Human Rights Agenda for the Biden Administration
Get PDFThe Biden administration has much to do to restore the United States’ credibility as a human rights leader and to strengthen the human rights system in an era of rising right-wing nationalism, authoritarianism, and competition for global power. In doing so, it needs to lead by example by putting its own house in order, and act with both courage and humility in the face of deep global skepticism and distrust. Specifically, the administration should pursue five stages of engagement on human rights: reverse and revoke measures taken by the Trump administration, reaffirm the United States’ traditional commitments to human rights at home and abroad, rebuild the State Department and diplomatic corps, reengage with international and regional mechanisms through bilateral and multilateral diplomacy, and reconceptualize the United States’ twenty-first century relationship to human rights. All of the other topics addressed in this symposium – climate, health, elections, migration, structural racism, and trade – implicate human rights. None can be adequately addressed without a robust U.S. human rights agenda
Theorizing Constitutional History
No full textThe historical study of American constitutional law has long rested on a conceptual framework that divides the past into linear units of analysis. Constitutional time unfolds according to discrete eras defined by changes in political leadership and governance, whereas constitutional space typically appears divided into bordered jurisdictions and regional sections. Despite the prominence of this conceptual framework, scholars have yet to ask how, why, and to what effect it became the paradigmatic mode of study. In the absence of close study, the framework instead appears as a neutral embodiment of the constitutional order. This essay offers a preliminary sketch of how theories of knowledge production, and particularly Louis Althusser’s theory of law as an ideological apparatus, can help to move beyond this facile assumption. By returning to a selection of landmark judicial opinions and legal treatises from the long nineteenth century and analyzing their discursive practices in relation to the dominant modes of production, this exploratory essay suggests a striking possibility: that the paradigm that we have assumed to be a primordial part of the constitutional order only emerged in its current iteration in the late nineteenth-century shift from a plantation mode of production rooted in enslaved labor to an industrial mode of production rooted in wage labor. As these sources indicate, leading jurists in America’s age of conquest and enslavement regularly analyzed questions of state power and rights by organizing time according to chains of title rooted in dispossession based on race and space according to the geographic circuits of capital. Effective in naturalizing the strict racialized hierarchy integral to the production and circulation of export commodities, this discourse of tethering institutions to the history of property acquisition and the movement of commodities began to shift with the formal abolition of slavery and rise of intensive industrialization, as a new generation of legal academics created a paradigm of institutional time and space that, by erasing material histories of structural inequality, made it possible to reconstitute an old social order redicated on racial classifications of whiteness
After \u3cem\u3eFirst Options\u3c/em\u3e: Delegation Run Amok
Get PDFThe proper allocation of authority between courts and arbitral tribunals over the enforceability of agreements to arbitrate has long occupied a central place in U.S. arbitration law, domestic and international alike. From U.S. Supreme Court case law over the years, there has emerged a reasonably well-understood distinction between those issues of enforceability that a court will address if asked by a party to do so and those that it will not. Fundamental to the Court’s jurisprudence is a recognition that some enforceability issues – “gateway issues” – so seriously implicate the consent of parties to arbitrate their disputes that a party contesting the enforceability of an arbitration agreement on those grounds is entitled to a judicial determination of the matter, while others – “non-gateway issues” – do not. The Supreme Court has adopted the convention of also referring to gateway issues as issues of “arbitrability,” even though that is not how the term arbitrability is understood throughout most of the world.
Classic gateway issues include whether an agreement to arbitrate was ever validly formed, whether a non-signatory is bound by it, and whether it encompasses the dispute at hand. What these issues all have in common is the perception that they directly implicate the consent of the parties to submit a dispute to an arbitral rather than a judicial forum. By contrast, classic non-gateway issues include the timeliness of requests to compel arbitration of a dispute and the satisfaction, or not, of conditions precedent to arbitration. These issues do not question the consent of the parties to arbitrate, but whether an obligation to arbitrate a particular claim should be enforced. Parties are free to raise their arbitrability objections for the first time before an arbitral tribunal itself for decision, but U.S. law also allows parties to raise them for the first time before a court if they so prefer
Potential Tensions Between New York’s Climate Change Laws and Historic Preservation Laws
Get PDFFor many years, designated historic buildings have been exempt from most energy conservation codes. However, with increased attention to the perils of climate change, some cities – including New York – are adopting strong laws on building energy use that do not have this exemption. Historic preservation laws that have not caught up, and some fire codes, may pose obstacles to the installation of rooftop solar and some other methods to reduce building energy consumption