Global Health Research Center of Central Asia
Columbia Law School Scholarship ArchiveNot a member yet
5770 research outputs found
Sort by
Designing Contracts for a Modern Classroom: The ABCs of CBAs
Get PDFAlthough teacher contracts (commonly, collective bargaining agreements or CBAs) provide critical workforce protections for teachers and govern much of the profession, they remain an underutilized lever for enabling strong teaching and learning, elevating the teaching profession, and equipping school systems with tools and capacities to confront the challenges of a rapidly changing, increasingly uncertain world.
Drawing on research spanning states, school systems, and time periods, this report sets forth a conceptual framework that draws attention to teacher contracts — both what they say and the ways they are built — as a potentially powerful, already-embedded, forward-looking mechanism for professionalizing teaching and imbuing the profession with the flexibilities and collaboration needed to meet the challenges of today and tomorrow.
The report begins by explaining the “ABCs of CBAs:” the contractual A(greement), the formal and informal B(argaining) process, and the C(ollective) of people involved in public education. It explores the significance of each of these elements and how they interact. After that, the report introduces a set of cross-cutting design principles — shared, student-focused purpose; flexible, transparent design; and authentic participation — that each of the ABCs must follow to build teacher contracts for the modern classroom. Last, it explores what it might look like when these design principles are applied to the A(greement), the B(argaining), and the C(ollective) for the benefit of teachers, students, and families alike
The Applicable Law in Investor-State Arbitration
No full textThe merits of an investor-state dispute are governed first and foremost by the terms of the applicable treaty (or contract or statute) under which a claim arises. However, the gaps in those instruments are so great that, no matter how they are worded, recourse to international law in any of its forms is unavoidable. Further, though national law does not in principle govern the merits of any such dispute, it necessarily determines a number of issues ancillary to the merits, such as the nationality of the investor, the scope of the claimant’s property interest, and the lawfulness of the investment. Where an umbrella clause is present, matters become somewhat more complicated. Of especially topical interest is the European Union’s assertion that investment protections are subject to norms of EU law by virtue of EU law’s international law status. Because certain EU law norms—most notably the asserted ‘autonomy’ of EU law—dictate outcomes at variance with those contemplated by the treaty and international law more generally, those norms may operate as a challenge to the purposes that investment protection agreements are meant to serve
The Constitution of the War on Drugs
No full textPart of the Inalienable Rights series.
The U.S. government\u27s decades-long war on drugs is increasingly recognized as a moral travesty as well as a policy failure. The criminalization of substances such as marijuana and magic mushrooms offends core tenets of liberalism, from the right to self-rule to protection of privacy to freedom of religion. It contributes to mass incarceration and racial subordination. And it costs billions of dollars per year – all without advancing public health. Yet, in hundreds upon hundreds of cases, courts have allowed the war to proceed virtually unchecked. How could a set of policies so draconian, destructive, and discriminatory escape constitutional curtailment?
In The Constitution of the War on Drugs, David Pozen provides an authoritative, critical constitutional history of the drug war, casting new light on both drug prohibition and U.S. constitutional development. Throughout the 1960s and 1970s, advocates argued that criminal drug bans violate the Constitution\u27s guarantees of due process, equal protection, federalism, free speech, free exercise of religion, and humane punishment. Many scholars and jurists agreed. Pozen demonstrates the plausibility of a constitutional path not taken, one that would have led to a more compassionate approach to drug control.
Rather than restrain the drug war, the Constitution helped to legitimate and entrench it. Pozen shows how a profoundly illiberal and paternalistic policy regime was assimilated into, and came to shape, an ostensibly liberal and pluralistic constitutional order. Placing the U.S. jurisprudence in comparative context, The Constitution of the War on Drugs offers a comprehensive review of drug-rights decisions along with a roadmap to constitutional reform options available today.https://scholarship.law.columbia.edu/books/1377/thumbnail.jp
Financial Regulation Beyond Stability
Get PDFThis essay briefly reviews the ways stability has dominated regulatory and academic discourse about financial regulation. It then uses anti-money laundering (AML) and the Federal Home Loan Banks (FHL Banks) — the oldest government foray into housing policy — as case studies to show that banks and the financial system are already deeply engaged in efforts to further other important government policies. These case studies affirm just how hard it can be to promote healthy public-private coordination, while also revealing why such arrangements have become so pervasive. More than anything, the aim here is to force acknowledgment of the myriad aims beyond stability that financial regulation already seeks to further, and to encourage more and broader engagement with these important areas of public policy
The Remedial Rationale After SFFA
Get PDFAfter the Supreme Court’s ruling in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College (SFFA) limiting the ability of higher education institutions to use race as a factor to advance diversity in the student body, at least one prominent commentator suggested that universities should now justify their affirmative action policies based not on diversity but on the need to remedy discrimination. Chief Justice John Roberts’s majority opinion deems diversity — the rationale established in Regents of the University of California v. Bakke and affirmed in Grutter v. Bollinger — a “commendable” goal. But the effect of the Court’s ruling is to either limit the rationale’s practical utility going forward or to entirely overrule it. With this new uncertainty, it is understandable that racial justice advocates would turn to the remedial rationale to justify the constitutionality of race-conscious affirmative action. Relying on a remedial rationale not only reflects a pragmatic imperative in light of SFFA but also a foundational critique of the diversity rationale from those who support race-conscious affirmative action: the argument that the diversity rationale rests on the notion of “enhanc[ing] the educational experience of White students” while the “real reason we need affirmative action is that it is an important part of our society’s ability to remedy the effects of past discrimination.” This critique of affirmative action has long-standing roots. After the ruling in Bakke, civil rights lawyers characterized the Court’s decision as a “devastating loss” for its rejection of the idea that the “[Fourteenth] Amendment, primarily enacted to bring [B]lack [A]mericans to full and equal citizenship, allowed colleges and universities to take deliberate steps aimed at remedying the effects of centuries of slavery and segregation.” More than two decades later in a pre-Grutter essay examining the civil rights community’s subsequent pragmatic embrace of the diversity rationale, Professor Charles Lawrence argued that race-conscious affirmative action should instead be justified by the “need to remedy past discrimination, address present discriminatory practices, and reexamine traditional notions of merit.”
Despite the clarity with which many commentators embrace remedy as the real imperative for affirmative action, it is unclear what it would mean to develop new arguments based on the remedial rationale. The Supreme Court’s SFFA opinion adds very little to the doctrinal scope of the “remedial rationale,” doubling down on the parsimonious jurisprudence on the permissible scope of race-conscious remedies under the Fourteenth Amendment and admonishing the dissent for infusing remedial considerations into its understanding of the diversity rationale. Yet even with the constraints placed on remedy by the Supreme Court, much may rest on rebuilding a viable remedial rationale. The diversity rationale was never well-theorized or utilized beyond the elite higher education context. The actual stakes of affirmative action and the impact of SFFA will extend beyond higher education and threaten economic and racial integration efforts in elementary and secondary schools, programs to advance employment and economic equity, remedies for Black land loss and housing segregation, and environmental justice programs. The Court’s narrow construction of the Fourteenth Amendment in SFFA risks the very idea of racial remedy. Particularly at risk are efforts to address racial inequality stemming from past and contemporary exclusionary policies and practices.
This Article considers how to strengthen the forgotten remedial rationale with special attention to the role of housing. Diversity has been the prevailing rationale for higher education affirmative action, but in most other domains, the need to redress past or contemporary discrimination or exclusion justifies affirmative action. Federal, state, and local governments have launched powerful and innovative reparative initiatives in recent years. This Article examines the doctrinal and democratic space that remains for sustaining these programs under a remedial rationale
BU S4E0
No full textPhoto of Dorothy S. Lund, Columbia 1982 Alumna Professor of Law at Columbia Law School.https://scholarship.law.columbia.edu/beyond_unprecedented_podcast/1040/thumbnail.jp
Sect and Superstition: The Protestant Framework of American Codification
Get PDFElite lawyers who debated codification in the nineteenth-century United States treated codification as inseparable from a liberal Protestant textualism that had taken hold in the early national era. Legislators declared codification to be the necessary final step of the Protestant Reformation and frequently characterized common law lawyers as beholden to ‘superstition’ and ‘priestcraft’. Their opponents denounced the codifiers’ idea that texts alone could adequately convey common meanings and delighted to point out the endlessly fracturing glosses on supposedly ‘clear’ texts that divided the positivists into an ever-increasing number of sects.
Many works have addressed the relationship between populism and positivism over the course of the codification debates in the United States. What these works have missed is the Protestantism. Understanding how lawyers of another generation approached these questions can help us to appreciate the varieties of American textualism, and the fact that today’s textualism may be as foreign to textualisms of the past as to other methods entirely. Rather than the forerunners of a modern, rationalist ‘Republic of Statutes’, the codifiers were the literal and figurative sons of a post-Calvinist generation that was unquenchably optimistic about the clarity of texts and the common sense of individuals reading them. This lens also helps us better understand the defenders of the common law, who were not so much the retrograde servants of property rights and judicial supremacy as they are often presented, but were more often practically minded lawyers who understood the limits to which legislative texts could change the complex practices of law on the ground
New York Falling Behind in Implementing Bold Climate Law
Get PDFIn July 2019, shortly after Gov. Andrew Cuomo signed the Climate Leadership and Community Protection Act (CLCPA), I wrote in an op-ed, “The champagne corks are still popping. But the realization is dawning that implementing the new law will be really, really hard. New York is boldly going where no state has gone before … It will take a great deal of sweat and treasure (no one knows just how much), as well as a continuation of the political will that brought us to this point.”
We still do not know how much sweat and treasure will be required, but sadly it appears that the political will may be faltering. Gov. Kathy Hochul has admitted that New York will not meet some of the targets and, in a recent television interview she said, “The costs have gone up so much I now have to say, ‘What is the cost on the typical New York family?’ The goals are still worthy. But we have to think about the collateral damage of these decisions. Either mitigate them or rethink them.”
The state got off to a promising start in implementing the CLCPA. It created a 22-member Climate Action Council that was required to issue a “scoping plan” that would detail how the law’s goals would be met. The Council, led by Basil Seggos, then commissioner of the State Department of Environmental Conservation (DEC) and Doreen Harris, president and CEO of the New York State Energy Research and Development Authority (NYSERDA), and its eight advisory panels labored intensely for two years, held hundreds of meetings and hearings, and issued its final plan on Jan. 1, 2023, right on schedule. DEC, as required, established statewide greenhouse gas (GHG) emissions limits and a social cost of carbon. But then things became rocky.
This article summarizes the status of the implementation of the CLCPA. It draws in part on the Sabin Center’s New York State Climate Law Tracker and CLCPA Scoping Plan Tracker
Public Financing of Election Campaigns
No full textPublic financing consists of the provision of public dollars to candidates or parties to use to pay for campaign expenses. Public financing has the potential to reduce the influence of wealthy donors and special interests, reduce the burdens of fundraising, and, by leveling the playing field, promote electoral competition and political equality more generally. With the Supreme Court increasingly hostile to campaign finance measures that limit the use of private campaign money, public financing, which puts money into the system, is one reform measure that has consistently passed constitutional muster. In theory, public funding could have many benefits, but it is uncertain whether and to what extent public funding in practice accomplishes these goals. Moreover, some scholars have urged that public financing can contribute to political polarization. This chapter examines the variety of public funding programs currently in place in the United States; the constitutional doctrine that has both sustained and constrained public funding; and the evidence of the extent to which public funding may promote electoral competitiveness, stimulate political participation, affect policy outcomes, and contribute to polarization. These effects are often debated and uncertain, but for now public financing is central to the campaign finance reform agenda
Common Ownership and the Merger Guidelines
No full textThe 2023 Merger Guidelines include, for the first time, reference to common ownership, the unilateral theory of competitive harm popularized in the academic literature that posits that shareholders’ concurrent equity interests in rival firms can lessen those firms’ incentives to compete even in the absence of any control or communication by the common shareholders. As a matter of economic theory, common ownership has the potential to inflict competitive harm by distorting competitive incentives, but it will actually distort these incentives only in certain circumstances. The 2023 Merger Guidelines do not provide any guidance on those circumstances and are silent on exactly how common ownership without any control or communication by the common owners could disrupt these incentives.
This Chapter endeavors to fill that gap by elucidating the primary factors that bear upon the specific theory of unilateral harm embedded in the 2023 Merger Guidelines that common ownership by itself can lessen the commonly held firms’ incentives to compete. As the Chapter explains, while considerations such as the common owners’ interests in adjacent markets and the structure of the relevant market are essential to the competitive effects analysis, the most important factor pertinent to the incentives-only theory of harm the 2023 Merger Guidelines is whether the challenged common ownership modified a firm’s managerial incentives to compete. Unless common ownership causes firm managers to focus less on the maximization of own-firm profits than they would if there were no common ownership, competition will not be lessened.
As the Chapter further explains, in evaluating whether the challenged common ownership modified managerial incentives to compete, which is a precondition to the incentives-only theory of competitive harm articulated in the 2023 Merger Guidelines, the analysis must be undertaken with express reference to, and framed by, the specific governance structure in which those managerial incentives are set. The Chapter deploys that governance-centric approach to assess the specific manifestation of common ownership that has been the primary focus of the academic literature—the common ownership of publicly held firms arising from the significant growth of broad-based index funds. The Chapter explains why the corporate governance infrastructure in which the incentives of managers of publicly traded firms are set makes it highly unlikely that present levels of common ownership are diminishing those managers’ competitive incentives