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Comments on Preliminary Draft 6
Get PDFWe briefly reiterate the principal General Comments we made with respect to PD5, because PD6 continues, including in its two new sections, to manifest the same overall shortcomings: (i) the relationship of the draft to the statute remains highly inconsistent; (ii) the Restatement needs a consistent and transparent methodology for restating a statute; and (iii) continuing to carry on without clear methodological principles will undermine the utility of this project and the credibility of the ALI
How to Fix the Climate
Get PDFCan the world meet the challenge of climate change? After more than three decades of global negotiations, the prognosis looks bleak. The most ambitious diplomatic efforts have focused on a series of virtually global agreements such as the Kyoto Protocol of 1997 and the Paris Agreement of 2015. With so many diverse interests across so many countries, it has been hard to get global agreement simply on the need for action; meaningful consensus has been even more elusive. Profound uncertainty about the effectiveness of various mitigation measures has made it difficult to estimate the cost of deep cuts in emissions
Overlapping Copyright and Trademark Protection in the United States: More Protection and More Fair Use?
Get PDFThis chapter addresses the phenomenon of overlapping rights under US law and complements Chapter 25 authored by Professors Derclay and Ng-Loy on the overlap of trademark, copyright, and design protection under several other Common Law and Civil Law jurisdictions. Because the United States does not provide sui generis protection for industrial design, but instead protects design through trademark law (notably by protecting trade dress) and design patents, this chapter focuses on the overlap between trademark and copyright protection. The Lalique bottles created for Nina Ricci perfumes, for example, may enjoy both trademark and copyright protection in the United States. Similarly, cartoon characters are components of copyrightable works (and in some jurisdictions, may be copyrightable works in their own right), but many have also long been registered as trademarks for entertainment services or merchandise
Investment Promotion and Facilitation for Sustainable Development
Get PDFInvestment is a critical component of sustainable development. In particular, under the right conditions, foreign direct investment (FDI) can improve economic growth and living standards, create jobs, transfer technology and know-how and result in supply chain upgrading. However, its benefits are not automatic, and, if not carefully governed, investment can result in harm to the environment, labour standards and lead to tax evasion or other undesirable outcomes. Investment promotion and investment facilitation, in turn, can help states attract, expand and retain FDI
The Yearbook on International Investment Law & Policy 2018
Get PDFThe Yearbook on International Investment Law & Policy is an annual publication which provides a comprehensive overview of current developments in the international investment law and policy field, focusing on recent trends and issues in foreign direct investment (FDI), investment treaty practice, and investor-state arbitration.
The Yearbook monitors current developments in international investment law and policy, focusing (in Part One) on trends in foreign direct investment (FDI), international investment agreements, and investment disputes. Part Two, then, looks at central issues in the contemporary discussions on international investment law and policy. With contributions by leading experts in the field, this title provides timely, authoritative information on FDI that can be used by a wide audience, including practitioners, academics, researchers, and policy makers.
Edited by an Editorial Committee and overseen by an Advisory Board of esteemed global experts in the field of international investment law, the Yearbook is an essential tool for practitioners and academics looking for a resource of timely and authoritative information in this field.https://scholarship.law.columbia.edu/sustainable_investment_books/1008/thumbnail.jp
Linked Fate: Justice and the Criminal Legal System During the COVID-19 Pandemic
Get PDFThe concept of “linked fate” has taken on new meaning in the face of the COVID-19 pandemic. People all over the world – from every walk of life, spanning class, race, gender, and nationality – face a potentially deadly threat requiring cooperation and sacrifice. The plight of the most vulnerable among us affects the capacity of the larger community to cope with, recover, and learn from COVID-19’s devastating impact. COVID-19 makes visible and urgent the need to embrace our linked fate, “develop a sense of commonality and shared circumstances,” and unstick dysfunctional and inequitable political and legal systems.
Nowhere is the hazard of failing to recognize linked fate more urgent than in the criminal legal system. COVID-19 pandemic has hit people who live and work in correctional institutions particularly hard. The government bears legal and moral responsibility for people incarcerated in prisons, jails, and juvenile detention facilities, who cannot leave and must depend for their survival of the pandemic on the state. The movement in and out of correctional facilities by those employed to fulfill government’s responsibility also ensures the spread of infection. One study, for example, found that increases in a county\u27s jail incarceration rate were associated with significant rates of infectious disease deaths. The collective failure to attend to the circumstances that enmesh people in the criminal legal system – poverty, racial discrimination, poor health and mental care health care – also make prisons and jails a ground zero of the pandemic\u27s spread
Legitimate Interpretation – Or Legitimate Adjudication?
Get PDFCurrent debate about the legitimacy of lawmaking by courts focuses on what constitutes legitimate interpretation. The debate has reached an impasse in that originalism and textualism appear to have the stronger case as a matter of theory while living constitutionalism and dynamic interpretation provide much account of actual practice. This Article argues that if we refocus the debate by asking what constitutes legitimate adjudication, as determined by the social practice of the parties and their lawyers who take part in adjudication, it is possible to develop an account of legitimacy that produces a much better fit between theory and practice. The decisional norms employed by adjudicators include faithful agent arguments about governing texts, arguments from precedent, and arguments from settled practice, but also, in a more qualified fashion, considerations of morality and social consequences. Adjudicators mix and match these norms in reaching outcomes but do so in a way that is regarded as legitimate by the losers as well as the winners in contested adjudications. A general normative implication of this refocused account of legitimacy is that adjudicators, including high-level appeals courts, should not stray far from their basic function of dispute resolution, as opposed to law declaration
Reframing Affirmative Action: From Diversity to Mobility and Full Participation
Get PDFLegality and efficacy call for reframing the affirmative-action debate within a broader institutional effort to address structural inequality in higher education. Although defending affirmative action as we know it continues to be important and necessary, it is crucial to identify and address the disconnect between affirmative action and higher education\u27s practices that contribute to enduring racial and economic inequality and waning social mobility. There is a persistent and growing gap between higher education’s rhetoric of diversity, opportunity, and mobility and the reality of underparticipation, polarization, and stratification. That gap has racial, gender, and socioeconomic dimensions. The path to shoring up the legality of affirmative action actually overlaps with the structural changes required to meet the imperative of educating the next generation of students, a majority of whom will be Black and Brown and educated in nonprivileged, segregated environments.
This Essay first shows that affirmative action holds in place higher education’s role in stratifying access to higher education and restricts social mobility by race and class. It then explains practices perpetuating this structural inequality – the reward of past privilege rather than future potential, the hoarding of resources by privileged institutions, and the reliance on admissions decision-making to advance goals that in fact require broader institutional commitment and transformation. The next Part offers strategies and examples that reframe affirmative action by (1) nesting it within an effort to transform institutions to ensure full participation, (2) shifting from rewarding privilege to cultivating potential and increasing mobility, and (3) building partnerships and enabling systemic approaches to increasing educational access and success. The final Part argues that these structural approaches are less likely to trigger strict scrutiny from the courts, and will foster the inquiry needed to document the need for affirmative action in admissions and expand the justifications for race-conscious approaches
BU S1E01
No full textLine art image of Katharina Pistor and Michael Graetz.https://scholarship.law.columbia.edu/beyond_unprecedented_podcast/1003/thumbnail.jp
Major Federal Court Victory for Religious Liberty Rights of Immigrants\u27 Rights Activists
Get PDFOn Monday afternoon, February 3, 2020, U.S. District Court judge Rosemary Márquez issued a sweeping opinion in which she granted the religious liberty defenses raised by four activists working with the Southern Arizona group No More Deaths/No Más Muertes. The opinion reversed an earlier ruling in the case by Magistrate Judge Bernardo Velasco in which he had found the activists guilty of violating federal law for leaving water and food in the desert for migrants in the Cabrieza Prieta National Wildlife Area, a federally controlled refuge in the Southern Arizona desert where human remains of migrants are frequently found. The lower court had dismissed the religious liberty defense by characterizing it as a “modified Antigone defense.