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Is John Stuart Mill\u27s \u3cem\u3eOn Liberty\u3c/em\u3e Obsolete?
Get PDFIn On Liberty, published in 1859, John Stuart Mill argues for the “absolute” protection of the “liberty of thought and discussion.” Ever the empiricist, he maintains that such uncompromised freedom, not for all communication or self-expression but for the subset of those activities that qualifies as thought and discussion, would generate the best overall consequences for societies such as Great Britain and the United States. The advent of digital technology has altered how thought and discussion is generated, distributed, and received in ways that might problematize some of the empirical assumptions upon which Mill\u27s argument in On Liberty is based. This essay explores whether the reasons he advances for the absolute liberty of thought and discussion continue to have purchase in the face of the changed empirical domain in which Mill\u27s cherished activities of inquiry and persuasion now operate
Building a Cleaner, More Resilient Energy System in Cuba: Opportunities and Challenges
Get PDFCuba’s energy sector is at a crossroads. The country’s mostly fossil fuel-fired energy system faces a number of longstanding and serious challenges, including breakdowns at aging power plants, decreasing fuel imports and fuel shortages, and the growing threat of climate change-related disruptions. In recent years, Cuba has seen frequent electric blackouts and brownouts that have affected residents, businesses, and government institutions island wide.
Compounding these problems, Cuba is facing a severe economic crisis. In 2022, year-on-year inflation was 39% (down from 77% in 2021). While inflation is estimated to have dropped to 30% in 2023, the price of food increased 78%. Residents of Cuba are expected to experience a new wave of inflation in 2024 following the government’s announcement of a new austerity plan that will include price and tax increases and cuts in subsidies. Further, according to Cuba’s Minister of Economy and Planning, export earnings in 2023 were just 12 billion in 2019), missing the forecasted $9.9 billion.
Overcoming Cuba’s energy challenges amidst the economic crisis will be no small task, requiring substantial investments of capital, which have been hard to come by given real and perceived risks of investing in Cuba under current circumstances and other regulatory and legal obstacles. New policies and systemic changes, and an overall reimagining of the country’s energy system, will be essential to attract the new investment needed to enable a clean energy future.
Over the past 10 years, Cuba has begun to embark on an energy transition. Recent shifts in law and policy create new and promising opportunities and indicate a desire on the part of Cuba’s policymakers to transition to a cleaner, more climate resilient energy system. Cuba committed to generating 24% of its electricity from renewable energy sources by 2030 as part of the country’s Nationally Determined Contribution (NDC) under the Paris Agreement. Policymakers have subsequently announced their intent to increase renewable electricity generation to 37% by 2030. Additionally, in 2019, Cuba updated its constitution to explicitly state that the government must respond to climate change and aims to promote foreign investment for economic development. Cuba’s intention to transition to renewable energy generation is key, as renewables can provide climate change mitigation, reduced local air pollution, and resilience benefits over the current fossil fuel-fired power generation system.
This report provides detailed information on the current state of Cuba’s energy sector and identifies opportunities to accelerate the deployment of renewables and advance climate resilience. The information provided is intended to help support future decisions on planning and policy in Cuba, foreign policy in the United States and other countries, and private and public investment in the country’s clean energy transition
Racing \u3cem\u3eDobbs\u3c/em\u3e
Get PDFIn Dobbs v. Jackson Women\u27s Health Organization, the U.S. Supreme Court reversed Roe v. Wade\u27s limits on a state\u27s ability to restrict, and indeed completely outlaw, abortion. The case raises fundamentally important questions about rights to reproductive autonomy, bodily integrity, sex equality, privacy, and health.
Upon closer examination, Dobbs is also about race and the nation\u27s racial history, as the two papers published here argue. In Dreding Dobbs, Professor Katherine Franke suggests that Dobbs should be read alongside the Supreme Court\u27s 1857 decision in Dred Scott v. Sandford, in which the Court held that Black people-even free or freed Black people were not U.S. citizens. Franke reasons that Dred Scott did for white supremacy-defining the United States as a white nation-what Dobbs does for patriarchy- masculinizing the Constitution as a compact among men. In fact, Franke argues, Dred Scott and Dobbs are both cases about reproductive justice in the shadow of slavery.
In What Every One Knows About Dobbs-and Plessy, Ria Tabacco Mar draws important connections between Dobbs and the Supreme Court\u27s 1896 decision in Plessy v. Ferguson, the case in which the Court found that racial segregation of Black Americans did not violate the Fourteenth Amendment\u27s Equal Protection Clause. In both Plessy and Dobbs, Tabacco Mar argues, the Court responds to constitutional injuries with trivializing and patronizing rejoinders that deny our lived experience.
We publish these two papers here because, when read together, they offer new and fundamentally important insights about the meaning of Dobbs and how the legacies of slavery and the power of white supremacy haunt constitutional litigation even in cases that do not seem to be about race
Capitalism and the Challenge of Inequality
Get PDFRapidly rising income and wealth inequality in the United States and other Western countries has been commonly identified as an inherent and nefarious feature of the capitalist system. In fact, however, rising inequality within the economically advanced countries has been accompanied by both a significant relative improvement of the economic and social position of the previously disadvantaged groups, such as women and ethnic minorities, and an unprecedented reduction of the inequalities between the people living in the advanced countries and the rest of the world. This change is largely due to the phenomenon of globalization that brought the advantages of the capitalist economic system to the developing world. Rising inequality is also an effect of the deep technological transformation of Western economies in which an increasing share of national wealth is produced by a much smaller number of highly skilled and educated people than had ever been the case in the past. To be sure, the growing inequality does raise the specter of political instability and may call for some counteracting redistributive measures. But the most important condition of all such measures is not to base them on a theory that might undermine the legitimacy and the effectiveness of the capitalist market economy. A program of restituting to the descendants of American slaves the value of the labor unjustly taken from their ancestors might both alleviate some of the existing inequalities and reduce racial animosities, while at the same affirm the liberal commitment to the institutions of private property and inheritance. A provision of a certain amount of capital to each high-school-graduating student might widen and equalize their opportunities, while giving them a stake in the free market economy and redefining the concept of American citizenship
The Surprising Survival – So Far – of the Corporate Contribution Ban
Get PDFIn Citizens United v. Federal Election Commission, the Supreme Court invalidated the longstanding ban on the expenditure of corporate funds in federal election campaigns. In so doing, the Court dismissed outright an argument that had long been the foundation for the restriction of corporate money in election campaigns — that, due to the “substantial aggregations of wealth amassed by the special advantages which go with the corporate form[,]” corporate money poses a distinct threat to the integrity of democracy. Instead, viewing corporations as essentially “associations of citizens,” Citizens United determined that “the First Amendment does not permit Congress to make … categorical distinctions based on the corporate identity of the speaker .... Government may not suppress political speech on the basis of the speaker’s corporate identity. No sufficient governmental interest justifies limits on the political speech of nonprofit or for-profit corporations.”
For now, at least, the corporate campaign contribution ban remains a part of campaign finance regulation in federal elections and in nearly half the states. This Article examines the history of corporate contribution regulation, its current status, and its potential future. Part II traces the ban’s statutory and doctrinal development. Part III analyzes how the courts over the last fourteen years have threaded the needle of sustaining the corporate contribution ban notwithstanding Citizens United. Part IV addresses other developments in the Supreme Court’s campaign finance jurisprudence that threaten the survival of the corporate contribution ban. Part V provides brief descriptions of possible alternatives to a corporate contribution ban. Part VI concludes with some speculations about the persistence of the corporate contribution ban
Beyond Unprecedented S4 Ep3: Musk and Twitter: The $44 Billion Arbitrage
Get PDFAt the intersection of law and finance, legal financial arbitrage (LFA) is an increasingly important field that focuses on pricing differences resulting from legal or regulatory uncertainties. Chas Cocke, founder and managing partner of LB Partners, discusses LFA in the context of Elon Musk’s 2022 acquisition of Twitter.https://scholarship.law.columbia.edu/beyond_unprecedented_4/1003/thumbnail.jp
The Legality of Revenue Disbursement from an Economic Measure Agreed at the International Maritime Organization for Purposes Other than the Decarbonisation of International Shipping
Get PDFThis analysis fills a gap in the existing legal literature on the adoption of a greenhouse gas (GHG) pricing mechanism at the International Maritime Organization (IMO or Organization). First, it investigates whether the adoption of a GHG pricing mechanism which includes the potential use of funds for purposes aside from the decarbonisation of international shipping is within the general competence of the IMO. Providing an affirmative interpretation, it then considers the adoption of such a measure as an amendment to Annex VI of the International Convention for the Prevention of Pollution from Ships (MARPOL). The analysis concludes that a broad interpretation of MARPOL is permissible and that, subject to political will, the legal basis for a GHG pricing mechanism which includes the potential for funds to be disbursed for purposes other than the decarbonisation of international shipping could be included within MARPOL. Furthermore, the analysis indicates that scenarios in which funds are disbursed outside of the international shipping sector, in conjunction with funding used within the sector, better place Member States to fulfil the objectives of the 1948 Convention of the International Maritime Organization (IMO Convention) as well as other relevant rules of international law, such as the United Nations Convention on the Law of the Sea (UNCLOS)
In Search of an Open Mind: Speeches and Writings
No full textThroughout his twenty-one-year tenure as president of Columbia University, Lee C. Bollinger was an outspoken national leader on many of the major issues confronting higher education and society more broadly. One of the country’s preeminent First Amendment scholars, he published frequently on free speech and press while leading a wide range of transformational university initiatives. During a period marked by profound change, he spoke within and beyond the academy about the challenges facing journalism, global free speech, and academic freedom, as well as the critical value of increasing racial and cultural diversity in higher education through affirmative action.
In Search of an Open Mind is a curated selection of Bollinger’s speeches, articles, and opinion columns during these momentous decades, reflecting on many significant events and challenges. These pieces cover a broad array of topics, from civil rights and civil liberties to the nature of the university and living a good life. Bollinger spoke often about the essential role of affirmative action in college admissions in overcoming the long legacy of racial discrimination, having led the litigation in the landmark case of Grutter v. Bollinger, in which, for the first time, a majority of the Supreme Court upheld the practice as constitutional. With the engaging writing style of a seasoned speaker and gifted teacher, this book provides first-hand insights into central issues of our civic and political life that are as timely now as when they were originally delivered.https://scholarship.law.columbia.edu/books/1394/thumbnail.jp
The Equal Right to Exclude: Religious Speech and the Road to \u3cem\u3e303 Creative LLC v. Elenis\u3c/em\u3e
Get PDFThis Article explains how speech became the constitutional vehicle for the right to discriminate on religious grounds in places of public accommodation. It argues that cause lawyers for the New Christian Right cobbled together a right to exclude from a surprising doctrinal source: the egalitarian tendencies within the First Amendment. Using extensive original archival research, case materials, and little-known accounts of key figures, I reconstruct the New Christian Right’s legal strategy to obtain speech coverage for service denial. By strategically co-opting the progressive free speech legacy, innovative lawyers in the religious wing of the conservative legal movement convinced liberal jurists that they shared an approach to constitutional interpretation. The result was an argument that won the day in 303 Creative v. Elenis — that the government discriminates on the basis of speech content when it enforces public accommodations law in the sale of expressive products.
This research has important implications for our understanding of the conservative legal movement, the meaning of First Amendment equality, and the future of anti-discrimination law. First, by going to the origins of conservative Evangelical cause lawyering, this Article reveals compromises, tensions, and contingencies in the formation of today’s conservative legal movement. Second, this novel history helps illuminate key moves in expressive conduct doctrine that resurfaced in 303 Creative. Third, the story provides important resources for understanding the 303 Creative decision and where expressive association doctrine is likely to go next
Amazon, SpaceX and Other Companies are Arguing the Government Agency that has Protected Labor Rights Since 1935 is Actually Unconstitutional
Get PDFAmazon, SpaceX, Starbucks and Trader Joe’s have all responded to allegations that they have violated labor laws with the same bold argument. The National Labor Relations Board, they assert in several ongoing legal proceedings, is unconstitutional.
SpaceX, for example, says that the NLRB is engaging in “an unlawful attempt … to subject Space X to an administrative proceeding whose structure violates Article II, the Fifth Amendment, and the Seventh Amendment of the Constitution of the United States.”
If these companies prevail, the entire process for holding union elections and for prosecuting employers who break labor laws – in place since the days of the New Deal – could collapse. That would leave U.S. workers more vulnerable to exploitation