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No full textLine art image of Peter Conti-Brown and Kathryn Judge.https://scholarship.law.columbia.edu/beyond_unprecedented_podcast/1006/thumbnail.jp
Symposium: The Puzzling and Troubling Grant in Kisor
Get PDFFrom one perspective, the Supreme Court’s decision to grant review in Kisor v. Wilkie is not surprising. Dating back at least to Justice Antonin Scalia’s 2011 concurrence in Talk America v. Michigan Bell Telephone Co., through Decker v. Northwest Environmental Defense Center in 2013 and Perez v. Mortgage Bankers Association in 2015, there’s been growing interest on the Supreme Court’s conservative wing in overturning Auer deference, or the doctrine that an agency’s interpretation of its own regulation is “controlling unless plainly erroneous or inconsistent with the regulation.” The campaign to overturn Auer v. Robbins then stalled, with the court denying review of several subsequent petitions raising the issue and failing to engage with Auer in some cases it did grant. But against this background it seems hardly unexpected that the court granted cert in Kisor to decide Auer’s fate
War Powers: Congress, the President, and the Courts – A Model Casebook Section
Get PDFThis model casebook section is concerned with the constitutional law of war powers as developed by the executive and legislative branches, with a limited look at relevant statutes and federal court cases. It is intended for use in Constitutional Law I classes that cover separation of powers. It could also be used for courses in National Security Law or Foreign Relations Law, or for graduate courses in U.S. foreign policy. This is designed to be the reading for one to two classes, and it can supplement or replace standard casebook sections on war powers that are shorter and offer less detail. We plan to update this section periodically in response to feedback and events
Coordinating Injunctions
Get PDFConsider this scenario: Two judges with parallel cases are each ready to issue an injunction. But their injunctions may clash, ordering incompatible actions by the defendant. Each judge has written an opinion justifying her own intended relief, but the need to avoid conflicting injunctions presses her to make a further choice – “Should I issue the injunction or should I stay it for now?” Each must make this decision in anticipation of what the other will do.
This Article analyzes such a judicial coordination problem, drawing on recent examples including the DACA cases and the “sanctuary cities” cases. It then proposes a solution: When faced with a possible clash of injunctions, each district judge should issue or stay her intended relief in accordance with the real-world outcome she thinks the majority of district judges would choose. Following such a shared convention, judges with diverse views will have a better chance of avoiding a clash because their estimates of the majority view are probably more similar than their individual views. And a stay would not signify abandoning a judge’s own views (which are still fully aired in her written opinion) but would instead reflect an awareness that other judges’ views may differ – akin to the existing practice of a stay pending appeal. Notable complications are addressed, including the first-mover advantage of the earliest judge to act; the role of the appeals courts; the possibility of circuit splits; and how such a shared convention might break down
Briefing Note: Aligning International Investment Agreements with the Sustainable Development Goals
Get PDFPolicy makers and other stakeholders are currently asking fundamental questions about whether and to what extent international investment agreements (IIAs) are consistent with and are helping to advance sustainable development objectives at home and abroad.
A 2019 paper from CCSI examines the alignment of IIAs with the 2030 Sustainable Development Agenda, arguing that while FDI will play an important role in advancing development outcomes, existing treaties must be reformed and future IIAs reimagined in order to achieve deep alignment with the sustainable development goals.
The paper proposes that IIAs should be designed and evaluated with respect to their ability to promote investments that advance sustainable development goals, while withholding benefits from investments that undermine these goals.
It then argues that treaties should also be evaluated according to their ability to promote, rather than constrain, responsible, SDG-advancing governance at the national level. It considers the effects of IIAs on policy-making processes and regulatory space, cautioning that current provisions in IIAs protect the interests of investors over those of other stakeholders and constrain states’ abilities to regulate investments to conform with the public interest.
Finally, it suggests that international agreements could and should do more to address transnational governance gaps, regulatory races to the bottom, and global commons problems, where international commitments related to the governance of investment could advance development outcomes.
Lisa Sachs describes the Framework in the video, which was prepared for UNCTAD’s 2020 IIA Conference held virtually on November 26, 2020. This framework builds on a previous study, entitled Aligning Swiss Investment Treaties with Sustainable Development, commissioned by the Swiss Agency for Development and Cooperation, that focuses on helping capital-exporting states assess their treaties’ alignment with sustainable development and applies the framework to a review of Swiss IIAs.
The framework identifies five principles that should guide the content and application of IIAs (if and when the treaties are concluded) in order to align them with sustainable development objectives: Maintain legitimate policy space and allow legal and regulatory frameworks to evolve over time to address new challenges and changing circumstances; Do no harm; Advance labor standards, human rights, and environmental protection; Increase cross-border investment flows; and Ensure coherence across relevant government policy spheres.
The study reviews 40 Swiss IIAs – agreements concluded over roughly the past 50 years – in light of those five principles. Based on that review, the report concludes both that Swiss IIAs often risk frustrating sustainable development outcomes, and represent missed opportunities to proactively advance progress on sustainable development goals. At the same time, the report identifies feasible, concrete steps that the government can take to address these issues in both their existing and future treaties.
The Swiss Government’s initiative to analyze IIAs from a sustainable development perspective offers a framework that other governments – particularly governments of capital exporting states – can use to conduct similar reviews
The Perilous Public Square: Structural Threats to Free Expression Today
No full textAmericans of all political persuasions fear that “free speech” is under attack. This may seem strange at a time when legal protections for free expression remain strong and overt government censorship minimal. Yet a range of political, economic, social, and technological developments have raised profound challenges for how we manage speech. New threats to political discourse are mounting – from the rise of authoritarian populism and national security secrecy to the decline of print journalism and public trust in experts to the “fake news,” trolling, and increasingly subtle modes of surveillance made possible by digital technologies.
The Perilous Public Square brings together leading thinkers to identify and investigate today’s multifaceted threats to free expression. They go beyond the campus and the courthouse to pinpoint key structural changes in the means of mass communication and forms of global capitalism. Beginning with Tim Wu’s inquiry into whether the First Amendment is obsolete, Matthew Connelly, Jack Goldsmith, Kate Klonick, Frederick Schauer, Olivier Sylvain, and Heather Whitney explore ways to address these dangers and preserve the essential features of a healthy democracy. Their conversations with other leading thinkers, including Danielle Keats Citron, Jelani Cobb, Frank Pasquale, Geoffrey R. Stone, Rebecca Tushnet, and Kirsten Weld, cross the disciplinary boundaries of First Amendment law, internet law, media policy, journalism, legal history, and legal theory, offering fresh perspectives on fortifying the speech system and reinvigorating the public square.https://scholarship.law.columbia.edu/books/1282/thumbnail.jp
Transparency in the Extractive Industries: Getting Serious About Politics to Get Serious About Impact
Get PDFPLUS POLITICS is a multi-part series of briefs from the Columbia Center on Sustainable Investment that aims to encourage practitioners to apply a more systematic political lens to their work on governance in the extractive industries. Each brief will deal with a key governance issue and will provide a brief analysis of its political challenges and practical recommendations to address them
James Comey to Teach at Columbia Law
Get PDFColumbia Law School has landed a big name to teach next semester: Former FBI Director James Comey, who will teach a spring semester seminar called Lawyers and Leaders as a Leader in Residence at the law school
India’s First Period: Constitutional Doctrine and Constitutional Stability
Get PDFStudies on constitutional stability and endurance rarely gesture toward the role of legal doctrine. While the workings of courts are often considered in understanding how a constitutional order might be sustained, this is almost variably achieved by examining the relationship between courts and other institutions. This chapter takes a different approach and studies the way in which constitutional consolidation might also be shaped by the doctrinal orientations and forms of reasoning that courts adopt. It does so by considering the first period of Indian constitutionalism. The focus is on two specific areas: the place of the Directive Principles in India’s constitutional schema, and the confrontation between the judiciary and the legislature over land reform. In both instances, the judiciary helped to preserve the constitutional order, by sidestepping tensions that could have exploded and by carefully tailoring and minimizing disagreement, respectively
Money Matters But It Doesn’t Decide: The Case of Michael Bloomberg’s Presidential Campaign
Get PDFMichael Bloomberg spent nearly a billion dollars in personal wealth on an unsuccessful bid for the US presidency. While personal spending is not limited by campaign finance laws, self-funded candidates often find it difficult to win elections