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Draft Treaty Language: Withdrawal of Consent to Arbitrate and Termination of International Investment Agreements
Get PDFThe United Nations Commission on International Trade Law (UNCITRAL) is currently working on how to reform international investment treaties, focusing in particular on those treaties’ provisions enabling investors to sue governments in international arbitration. As an observer organization in this process, CCSI has emphasized that in the context of investor-state dispute settlement (ISDS) reform, it is important to first consider what it is that investment treaties aim to achieve, and only then to consider what form(s) of dispute settlement will best advance those objectives. This means not only looking at reform of the existing ISDS mechanism, but also alternatives to it. Having identified various concerns about ISDS, UNCITRAL is now taking stock of potential reform options, and will consider this fall which options to pursue and in what order. To contribute to UNCITRAL’s work, CCSI, together with the International Institute for Environment and Development (IIED) and the International Institute for Sustainable Development (IISD), submitted this document outlining potential reform options and considerations.
In line with our broader work on objectives of international investment law, the costs and benefits of the current system, alternatives to investor-state arbitration, and strategies for advancing those alternatives, in Draft Treaty Language: Withdrawal of Consent to Arbitrate and Termination of International Investment Agreements, we outline two more systemic and near-term options that states can explore to recraft their investment policies with domestic and international sustainable development objectives
Environmental Injustice: How Treaties Undermine the Right to a Healthy Environment
Get PDFOur planet faces unprecedented threats, including irreversible global warming, loss in biodiversity, and water pollution and water scarcity. The impacts of these environmental crises also threaten human rights and exacerbate inequality. Slowing these worsening environmental trends – and addressing the impacts of environmental change on populations – will require cumulative policy responses at the national and international level
What is ‘Dark Money’? 5 Questions Answered
Get PDFWith the 2020 campaign season upon us, “dark money” is again in the news.
Maine’s Republican Sen. Susan Collins has decried what she contends is a “dark money” campaign against her. Montana’s Gov. Steve Bullock has made opposition to dark money a centerpiece of his Democratic presidential campaign.
But what exactly is “dark money,” and why is it considered a problem?
As a law professor who studies campaign finance, I’d like to answer those questions and explain how improved disclosure laws could shed some light on dark money
A Computational Analysis of Constitutional Polarization
Get PDFThis Article is the first to use computational methods to investigate the ideological and partisan structure of constitutional discourse outside the courts. We apply a range of machine-learning and text-analysis techniques to a newly available data set comprising all remarks made on the U.S. House and Senate floors from 1873 to 2016, as well as a collection of more recent newspaper editorials. Among other findings, we demonstrate (1) that constitutional discourse has grown increasingly polarized over the past four decades; (2) that polarization has grown faster in constitutional discourse than in nonconstitutional discourse; (3) that conservative-leaning speakers have driven this trend, (4) that members of Congress whose political party does not control the presidency or their own chamber are significantly more likely to invoke the Constitution in some, but not all, contexts; and (5) that contemporary conservative legislators have developed an especially coherent constitutional vocabulary, with which they have come to own not only terms associated with the document\u27s original meaning but also terms associated with textual provisions such as the First Amendment. Above and beyond these concrete contributions, this Article demonstrates the potential for computational methods to advance the study of constitutional history, politics, and culture
Policing the Open Road: How Cars Transformed American Freedom
No full textWhen Americans think of freedom, they often picture the open road. Yet nowhere are we more likely to encounter the long arm of the law than in our cars. Sarah Seo reveals how the rise of the automobile led us to accept – and expect – pervasive police power. As Policing the Open Road makes clear, this radical transformation in the nature and meaning of American freedom has had far-reaching political and legal consequences.
Before the twentieth century, most Americans rarely came into contact with police officers. But with more and more drivers behind the wheel, police departments rapidly expanded their forces and increased officers’ authority to stop citizens who violated traffic laws. The Fourth Amendment – the constitutional protection against unreasonable searches and seizures – did not effectively shield individuals from government intrusion while driving. Instead, jurists interpreted the amendment narrowly. In a society dependent on cars, everyone – the law-breaking and law-abiding alike – would be subject to discretionary policing.
Seo overturns prevailing interpretations of the Warren Court’s due process revolution. The justices’ efforts to protect Americans did more to accommodate than to limit police intervention, and the new criminal procedures inadvertently sanctioned discrimination by officers of the law. Constitutional challenges to traffic stops largely failed, and motorists “driving while black” had little recourse to question police demands. Seo shows how procedures designed to safeguard us on the road ultimately undermined the nation’s commitment to equal protection before the law.https://scholarship.law.columbia.edu/books/1256/thumbnail.jp
Securing Adequate Legal Defense in Proceedings under International Investment Agreements: A Scoping Study
Get PDFCCSI prepared a Scoping Study for the Ministry of Foreign Affairs of the Netherlands. Also available are: A summary version of the study (33 pages) A webinar (March 24, 2020), hosted by CCSI and the Ministry of Foreign Affairs of the Netherlands, discussed the Scoping Study and its findings (see also accompanying slides with speaking notes). A webinar organized by UNCITRAL (April 21, 2020). CCSI presented the Scoping Study. A video link of the webinar along with CCSI’s slides are available in English (with speaking notes) and French at that link. CCSI Senior Fellow Karl Sauvant also presented his UNCITRAL Academic Forum Concept paper, available at that link.
The primary research question that the Scoping Study was requested to address is: How can adequate legal defense for parties in proceedings under International Investment Agreements (IIAs) be better secured?
The Scoping Study provides a broad and inclusive overview of issues, concerns, empirical evidence, opinions, lessons learned, and proposed solutions as they relate to potential or expanded Assistance Mechanisms for international investment law. This Scoping Study reflects input received on a confidential basis from: government officials (of all World Bank Group economic development levels); individuals who have experience establishing or working for existing or attempted Assistance Mechanisms; individuals who have experience working for an arbitral institution; academics who have written on and/or advised states with respect to international investment law; private practitioners; representatives of non-governmental organizations; and representatives of private sector foreign investors.
Concerns about IIAs and ISDS are much more fundamental than only the financial costs of participation in this system. The Scoping Study considers the range of problems that states and other actors have in engaging with and benefiting from international investment law and in participating effectively in investor-state dispute settlement processes related to: investment policy-making IIA negotiation implementation and management of their IIAs and associated policies dispute prevention pre-dispute management and consultations case staffing anticipating, and potentially resolving, ISDS cases at an early phase appointing arbitrators dealing with uncertainty and ambiguity working with experts engaging in discovery of and managing information.
The Scoping Study surveys a wide variety of models that Assistance Mechanisms, both with respect to international investment law as well as those employed in other legal fields, have taken and may take to address various concerns.
Various cross-cutting issues emerged from analysis of and experience with existing Assistance Mechanisms. These cross-cutting issues should be considered by policy-makers as they consider the breadth and depth of services as well as the model(s) that an Assistance Mechanism could follow. The cross-cutting issues that are explored in depth in the Scoping Study include: Quality, reliability, reputation, and trust; Funding of an Assistance Mechanism and scope of services; Costs of support and who bears them; Stakeholder tensions; Identifying the client/beneficiary; Location, staffing, and remuneration; Institutionalized vs. ad hoc mechanisms; “Politics” surrounding the role of an Assistance Mechanism; and Intersection with other reforms
Linkages to the Mining Sector in Colombia
Get PDFAt the request of the Colombian Government and with the support of GIZ, CCSI prepared a policy brief focused on linkages from the mining sector in Colombia. The brief gives an overview of existing regulatory requirements, government policies and company programs to foster economic and infrastructure linkages. Based on the findings, the brief provides suggestions for next steps if the government is to develop a more comprehensive linkage creation program
Democratic Policing Before the Due Process Revolution
Get PDFAccording to prevailing interpretations of the Warren Court’s Due Process Revolution, the Supreme Court constitutionalized criminal procedure to constrain the discretion of individual officers. These narratives, however, fail to account for the Court’s decisions during that revolutionary period that enabled discretionary policing. Instead of beginning with the Warren Court, this Essay looks to the legal culture before the Due Process Revolution to provide a more coherent synthesis of the Court’s criminal procedure decisions. It reconstructs that culture by analyzing the prominent criminal law scholar Jerome Hall’s public lectures, Police and Law in a Democratic Society, which he delivered in 1952 on the differences between democratic and totalitarian police forces. Hall’s definition of democratic policing appealed to self-rule, then to the rule of law, and finally, to due process, as he struggled to account for twentieth-century police forces that were not, in important ways, governed by the people or entirely constrained by law. Hall ultimately settled on the idea that in a democratic society due process meant that the police did not decide the outcome of a “fair trial” – a definition that is different from today’s understanding of due process, which emphasizes judicial review of police action. The Essay applies the methodology of cultural history to argue that during the Cold War, Hall articulated a concept of due process that was not just a legal norm but also a cultural value that rationalized discretionary policing and served to distinguish two competing systems of government that both relied on discretionary authority. The Essay concludes by exploring how Hall’s explication of due process, which was representative of midcentury views, might revise standard accounts of the Due Process Revolution. Understanding the legal culture that came before – and informed – the Warren Court’s criminal procedure decisions suggests that due process functioned as much to justify as to restrain police discretion
Peril and Possibility: Strikes, Rights, and Legal Change in the Era of Trump
Get PDFThank you, I am delighted to be here. When Professor Fisk and the editors of the Journal asked if I would be willing to give the Feller Lecture this year, I did not hesitate for a moment. It goes without saying that, for a labor law professor, to give a lecture that commemorates David Feller is truly a special honor. While I never had the chance to meet him, his work as an advocate and scholar serves as an example for everyone in the field. I am grateful to the Journal and to the Feller family for the opportunity to be with you, and I am particularly grateful for the opportunity to be with you today, in this moment in our country’s history.
Everyone in this audience is well aware of the problems plaguing working people in America. Income inequality in the United States is at stunningly high levels, leading commentators to term this era the “new Gilded Age.” The statistics are by now familiar, but they are worth reiterating. The wealthiest one percent of Americans takes home nearly a quarter of our national income and owns forty percent of the nation’s wealth
On Posner on Copyright
Get PDFThe judiciary are different than you and me, not just because they have life tenure, but because they spend years being petitioned by real people. A judge therefore does not face problems as a logistician or an academic does but instead faces a demand to do something for someone, based on events preceding. The resulting posture of decision tends to bring something out, something Justice Oliver Wendell Holmes once described as “the secret root from which the law draws all the juices of life.”
We can learn more about this “secret root” of the common law decision-making from Richard Posner’s career, for he made his calling the addressing of hard problems from both an academic and judicial posture. When it came to copyright law (the subject of this Essay), he was a leading advocate of an economic approach to the law and even specified what he thought with some doctrinal specificity. Hence the natural experiment: What would happen when Posner came to face decades of actual cases? What might be the effect, if any, of judging