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COVID-19 and Prisoners’ Rights
Get PDFAs COVID-19 continues to spread rapidly across the country, the crowded and unsanitary conditions in prisons, jails, juvenile detention, and immigration detention centers leave incarcerated individuals especially vulnerable. This chapter will discuss potential avenues for detained persons and their lawyers seeking to use the legal system to obtain relief, including potential release, during this extraordinary, unprecedented crisis
La Société d’exposition: Désir et désobéissance à l’ère numérique
No full textBernard E. Harcourt propose une critique puissante de notre nouvelle transparence virtuelle. Il livre une analyse de ce que les technologies big data font à nos vies, et de la manière dont elles s’y introduisent, et révèle l’ampleur de notre renoncement, volontaire, à la liberté – jusqu’à l’acceptation de toutes les dérives sécuritaires. Ces atteintes à nos libertés sont flagrantes ; pourtant, nous ne semblons pas nous en soucier.
Exploitant notre désir sans fin d’avoir accès à tout, tout le temps, les géants d’Internet dressent un portrait de notre propre intimité, collectent des millions de données sur nos activités, nos centres d’intérêt et nos relations, tandis que les agences de renseignement les croisent aux milliards de communications qu’elles enregistrent chaque jour. Nous continuons cependant, et malgré notre connaissance de l’instrumentalisation de ces données, de publier nos photos de familles, nos humeurs et nos pensées. Nous donnons en caisse, en même temps que notre carte bleue, nos adresses email et postale. D’où vient le sentiment de fatalité à l’égard de cette transgression du public et du privé ?
Ce livre montre d’une manière saisissante comment les nouvelles technologies exploitent notre désir illimité d’accéder à tout, tout le temps et sans attendre – au risque de la surveillance généralisée. Et invite à la désobéissance et à la résistance.
Description in English (Google Translate):
Bernard E. Harcourt offers a powerful critique of our new virtual transparency. It provides an analysis of what big data technologies do to our lives, and how they fit into it, and reveals the extent of our voluntary renunciation of freedom – until everyone\u27s acceptance. security abuses. These attacks on our freedoms are flagrant; yet, we don\u27t seem to care.
Harnessing our endless desire to have access to everything, all the time, the internet giants paint a picture of our own privacy, collect millions of data about our activities, interests and relationships, while Intelligence agencies see them in the billions of communications they record every day. However, despite our knowledge of the instrumentalization of this data, we continue to publish our family photos, our moods and our thoughts. We give at the cash desk, along with our credit card, our email and postal addresses. Where does the feeling of fatality come from regarding this transgression of the public and the private?
This book strikingly shows how new technologies are harnessing our unlimited desire to access everything, all the time, and without delay – at the risk of widespread surveillance. And invites disobedience and resistance.https://scholarship.law.columbia.edu/books/1297/thumbnail.jp
Harassment, Workplace Culture, and the Power and Limits of Law
Get PDFThis article asks why it remains so difficult for employers to prevent and respond effectively to harassment, especially sexual harassment, and identifies promising points for legal intervention. It is sobering to consider social-science evidence of the myriad barriers to reporting sexual harassment – from the individual-level and interpersonal to those rooted in society at large. Most of these are out of reach for an employer but workplace culture stands out as a significant arena where employers have influence on whether harassment and other discriminatory behaviors are likely to thrive. Yet employers typically make choices in this area with attention to legal accountability rather than cultural contribution. My central claim is that these judgment calls – about policy, procedures, training, and operations – shape workplace culture and that it is a mistake to view them only through a compliance lens. With this insight, it becomes clear that each of these will be more effective in shaping culture when the employee user-experience is a focal point, and this article suggests many ways to achieve this result.
By seeing harassment prevention and response as an opportunity for culture creation in addition to being a compliance obligation, it also becomes clear that harassing behavior may negatively affect the targeted employee and the broader workplace even when there is no risk of liability. This includes “lowgrade harassment,” a category I use to describe behaviors that are intentionally harassing but not severe or pervasive enough to meet doctrinal thresholds. Also relevant are microaggressions and interactions that reflect implicit bias, as these are unlikely to expose a firm to liability because they lack the discriminatory intent required by legal doctrine but nonetheless can create significant challenges for employees and organizations. This is not to suggest that employers should respond in an identical way to all of these occurrences. Rather, the point is that inattention to experiences that go beyond legal-accountability requirements is likely to spill over into the broader workplace culture and diminish the effectiveness of other harassment prevention and response efforts.
The good news is that there are specific steps an employer can take to have harassment prevention and response become part of the workplace culture rather than being sidelined as compliance. Thoughtfully crafted legislative and policy interventions, along with litigation settlements, also can bridge this gap and create a more seamless set of cultural expectations for how employees interact with each other at work and what they can expect from their employer when challenges arise
Critique and Praxis: A Radical Critical Philosophy of Illusions, Values, and Action
No full textCritical philosophy has always challenged the division between theory and practice. At its best, it aims to turn contemplation into emancipation, seeking to transform society in pursuit of equality, autonomy, and human flourishing. Yet today’s critical theory often seems to engage only in critique. These times of crisis demand more.
Bernard E. Harcourt challenges us to move beyond decades of philosophical detours and to harness critical thought to the need for action. In a time of increasing awareness of economic and social inequality, Harcourt calls on us to make society more equal and just. Only critical theory can guide us toward a more self-reflexive pursuit of justice. Charting a vision for political action and social transformation, Harcourt argues that instead of posing the question, “What is to be done?” we must now turn it back onto ourselves and ask, and answer, “What more am I to do?”
Critique and Praxis advocates for a new path forward that constantly challenges each and every one of us to ask what more we can do to realize a society based on equality and justice. Joining his decades of activism, social-justice litigation, and political engagement with his years of critical theory and philosophical work, Harcourt has written a magnum opus.https://scholarship.law.columbia.edu/books/1292/thumbnail.jp
Draft Transparency Policy and DFC Board of Directors Public Engagement Policy
Get PDFSubmission to the US International Development Finance Corporation (DFC) regarding its draft Transparency Policy and Board of Directors Public Engagement Policy (2020)
The Roberts Court and Administrative Law
Get PDFAdministrative law today is marked by the legal equivalent of mortal combat, where foundational principles are fiercely disputed and basic doctrines are offered up for “execution.” Several factors have led to administrative law’s currently fraught status. Increasingly bold presidential assertions of executive power are one, with President Trump and President Obama before him using presidential control over administration to advance controversial policies that failed to get congressional sanction. In the process, they have deeply enmeshed administrative agencies in political battles – indeed, for President Trump, administrative agencies are the political battle, as his administration has waged an all-out war on parts of the national bureaucracy. These bold assertions of administrative authority stem in part from Congress’ inability to address pressing problems, with political polarization, intense partisanship, and near parity between the main parties often leading to legislative gridlock. The contemporary political climate also means that fights over administrative actions have become fierce and unrelenting. Moreover, the combination of these two developments – aggressive administrative advancement of presidential agendas in a deeply partisan and polarized world – has spurred a significant uptick in politically charged administrative law litigation, epitomized by the dramatic expansion in red state and blue state lawsuits challenging executive branch actions they oppose. In addition, conservative groups have put sustained efforts into fostering academic attacks on core features of administrative government, efforts that have provided the intellectual scaffolding for today’s doctrinal disputes. And, finally, there is the Trump administration’s emphasis on selecting judges who are receptive to these conservative attacks on administrative governance in court
Why Financial Regulation Keeps Falling Short
Get PDFThis article argues that there is a fundamental mismatch between the nature of finance and current approaches to financial regulation. Today’s financial system is a dynamic and complex ecosystem. For these and other reasons, policy makers and market actors regularly have only a fraction of the information that may be pertinent to decisions they are making. The processes governing financial regulation, however, implicitly assume a high degree of knowability, stability, and predictability. Through two case studies and other examples, this article examines how this mismatch undermines financial stability and other policy aims. This examination further reveals that the procedural rules meant to promote accountability and legitimacy often fail to further either end. They result instead in excessive expenditures before new rules are adopted, counterproductive efforts to perfect ever more detailed rules, and too little re-evaluation of existing rules in light of new information or changed circumstances. The mismatch between the nature of finance and how finance is regulated helps to explain why financial regulation has failed in the past and why it will likely fail again. It also suggests the need for a new approach to financial regulation, one that acknowledges the limits of what can be known given the realities of today’s complex and constantly evolving financial ecosystem
The Regulation of International Trade, Vol. 3: The General Agreement on Trade in Services
No full textThe previous two volumes in The Regulation of International Trade analyzed the General Agreement on Tariffs and Trade (GATT), the first successful agreement to generate multilateral trade liberalization, and the World Trade Organization (WTO), for which the GATT laid the groundwork. In this third volume, Petros Mavroidis turns to the General Agreement on Trade in Services (GATS), a WTO treaty that took effect in 1995, and offers a comprehensive analysis that considers the historical context of the GATS, the national preferences that shaped it, and a path to a GATS 2.0.
Mavroidis examines the GATS through its negotiating record, considering whether the GATS as it is can appropriately address the concerns of the world trading community. The GATS deals exclusively with non-tariff barriers (NTBs) – precisely the instrument that the WTO has not managed to tame, and one of some significance in light of the digital revolution, which has enlarged the scope of cross-border transactions in which neither supplier nor consumer needs to travel for a service to be consumed. Mavroidis argues that the GATS has brought about a platform to liberalize services, and has locked in some pre-GATS liberalization. What is missing, he contends, is a “GATS-Think” that would generate liberalization from now on.https://scholarship.law.columbia.edu/books/1307/thumbnail.jp
\u3cem\u3eBoynton v. Virginia\u3c/em\u3e and the Anxieties of the Modern African-American Customer
Get PDFIn 1958, Bruce Boynton was arrested for ordering food in a Whites-Only diner and charged with criminal trespass. Sixty years later, African Americans continue to face arrest and threat of arrest in commercial establishments based on discriminatory trespass claims. When store owners or employees decide to exclude would-be patrons from their establishment for discriminatory reasons, both overt and implicit, they rely on the police to enforce this form of discrimination. This article considers the legacy of Boynton v. Virginia, particularly the resonance of Boynton’s unaddressed claim, that the state enforcement of discriminatory trespass allegations is an Equal Protection violation.
African-American consumers continually experience the threat of police intervention or actual arrest as they shop in stores and sit in coffee shops. The Article argues that state enforcement of discriminatory trespass claims against African Americans results in unequal access to commercial establishments open to the public. Trespass allegations can result in lifelong concerns – legal and psychological consequences. The continued enforcement of discriminatory trespass claims cause significant harms, including demonstrative public health effects on African Americans. In recounting Boynton, the Article draws from its legacy forms of action to address discriminatory trespass enforcement
Democracy & Religion: Some Variations & Hard Questions
Get PDFThe ideas sketched here concern the nonestablishment and free exercise norms expressed in the U.S. Constitution, their application to governmental institutions from legislatures to prisons and the military, the place of religion in the curricula of public schools, and the proper role of religious convictions in lawmaking. A major concern of the essay is the problem of achieving an appropriate balance between governmental neutrality toward religion, as required by the nonestablishment norm, and governmental accommodation of religious practices that would otherwise violate ordinary laws, as required by the free exercise norm. A recurring theme is the complexity of the issues and the variability of possible solutions given differences in the history and culture of democratic societies