Global Health Research Center of Central Asia
Columbia Law School Scholarship ArchiveNot a member yet
5770 research outputs found
Sort by
The Judicial Method in Copyright
Get PDFThis Essay, delivered as the 2023 Brace lecture, examines the role of the real unsung heroes of the modern U.S. copyright system: the federal judiciary. For the longest time, discussions of copyright policy and reform in the U.S. have altogether neglected the role that courts are meant to play in working copyright’s substantive and procedural rules. These discussions have instead assumed a norm of passivity from courts, who are presumed to either engage in a mechanical application of the statute’s text to decide disputes or instead make the law incrementally in common law style. In this Essay, I argue that in copyright matters, courts do something altogether different from both statutory interpretation and common law rule development. The “judicial method” in copyright instead involves (i) a complex self-understanding of the judicial role, one that is combined with (ii) an appropriate exercise of judgment from the applicable sources as well as (iii) an assessment of the system-wide consequences of individual decisions, which is then (iv) translated into principled reasoning. The Essay unpacks the origins, core elements, and motivations of each of these four steps to show how courts have engaged the copyright system over the last half century in a manner that has been anything but mechanical and workmanlike, despite scholarly and policy accounts that have underplayed its uniqueness
Environmental Law in Trump’s Second Term
Get PDFDonald Trump’s victory in the Nov. 5, 2024 election and Republican control of both the Senate and the House (if that happens) will mean a reversal of much of the environmental progress under the Biden administration, just as the 2016 election reversed large parts of the Obama environmental legacy. However, rapid advances in the technology and economics of clean energy have created a momentum that can be slowed but not stopped. States can adopt their own stronger standards despite what happens in Washington, with a few exceptions, and can use their procurement power and their pension funds’ investment clout to effect change.
This column discusses some of the key effects of the election on environmental law
Applicable Law and the Civil and Common Law Divide
Get PDFIn examining the relevance of civil law and common law synergies in international arbitration, we often dwell on aspects of arbitral practice and procedure. This should occasion no surprise. Our attention turns to arbitral practice and procedure, for that is what we do, as arbitrator and counsel, and on a daily basis. Leaving aside investor-State arbitration, in which substantive public international law looms large, international arbitration is very much a procedural endeavor.
But it should not be forgotten that the differences between the civil law and the common law manifest themselves not only, and not even primarily, in practice and procedure, but also in the form and content of the law. These are features in connection with which the very terms civil law and common law are commonly used. In considering the nature of these two families of law, no academic study of comparative law would concern itself exclusively with matters of practice or procedure
Copyright Law
No full textThis title provides a clear and thorough exploration of the doctrinal and policy issues in American copyright law. In a style accessible to both students and practitioners, it covers every major topic in basic copyright courses. This new edition, updated through mid-2024, will become an essential resource for students and practitioners.
Topics covered: History of the development of authors’ rights and of copyright Subject matter, including original works of authorship and artificial intelligence Ownership, including works made for hire, transfers of ownership and termination of transfers Duration and Formalities Exclusive rights, including their transposition to the digital environment Fair use, including the impact of the Supreme Court’s decision in Andy Warhol Foundation v. Goldsmith, and the operation of fair use in the digital and AI environments Secondary liability, both at common law and as developed through application of the DMCA to Internet service providers Enforcement, including “paracopyright” protections against circumvention of technological protection measures and for copyright management information Federal preemption of state law, including with respect to mass market “browsewrap” licenseshttps://scholarship.law.columbia.edu/books/1092/thumbnail.jp
UNCITRAL Working Group III: Contribution on the ‘Right to Regulate’ Provision
Get PDFUNCITRAL Working Group III: Contribution on the ‘Right to Regulate’ Provision is a joint submission to the Secretariat\u27s request for comments on the procedural and cross-cutting issues. The commentary focuses on the states\u27 right-to-regulate provision, proposed in the Draft provisions on procedural and cross-cutting issues, and proposes additional policy options aimed at preserving the states\u27 sovereign right (and duty) to regulate
Advisory Opinion on Climate Change: Summary of Written Observations Submitted to the Inter-American Court of Human Rights (Part 1)
Get PDFOn January 9, 2023, the Foreign Ministers of Chile and Colombia requested an advisory opinion from the Inter-American Court of Human Rights (IACtHR) on the scope of state obligations for responding to the climate emergency under the frame of international human rights law and, specifically, under the American Convention on Human Rights. Within this context, the IACtHR received a total of 255 amicus brief submissions.
This report includes summaries of the amicus briefs submitted to the Court. Due to the number of submissions received and the short timeframe prior to the hearings, the report is divided into parts. This first part includes written submissions from (i) States, (ii) organs of OAS, (iii) international organs and bodies, (iv) state bodies, and (v) communities, amounting to 54 briefs
International Governance of Ocean-Based Carbon Dioxide Removal: Recent Developments and Future Directions
Get PDFWith the impacts of climate change intensifying, and progress in reducing the greenhouse gas emissions that cause it continuing to lag, the parties to the Paris Climate Agreement have emphasized the need to accelerate efforts to remove carbon dioxide from the atmosphere, while simultaneously curbing emissions. As the parties have recognized, the ocean is already a major carbon sink, and could play an important role in future carbon dioxide removal (“CDR”) efforts. Scientists have proposed a variety of ocean-based CDR approaches, but most require further research to fully evaluate their efficacy, benefits, and risks. In-ocean testing of the approaches, and their subsequent deployment (if deemed appropriate), could prove challenging for a number of reasons. This paper focuses on the governance challenges associated with ocean CDR research and deployment. Because those activities will take place in the ocean, which is a shared resource, they may be subject to a large body of international law, including various international agreements. Most of the relevant agreements pre-date discussion of ocean CDR and adapting them to this new class of activities has proved difficult.
This paper discusses recent efforts to regulate ocean CDR under three long-standing international agreements: (1) the 1982 United Nations Convention on the Law of the Sea (“UNCLOS”), (2) the 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (commonly known as “the London Convention”); and (3) the 1996 Protocol to the London Convention (commonly known as “the London Protocol”). As we will see, the latter two agreements have recently been used to restrict ocean CDR activities, even while those same activities are being encouraged under the Paris Agreement. The paper will discuss options for promoting greater coherence in international governance of ocean CDR, including the possibility of using the new Agreement under UNCLOS on the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction to comprehensively regulate ocean CDR
Brandeisian Banking
Get PDFBanking law shapes the structure of the banking system, which in turn shapes the structure of the economy. One of the most significant ways that banking law in the United States traditionally sought to promote Brandeisian values of stability and decentralization was through a combination of carrots and sticks that enabled small banks across the country to thrive. To see this requires a richer understanding of Brandeis as someone who valued not just atomistic competition but also small business and broad flourishing. It also requires a deeper understanding of the ways different parts of banking law worked together during the heart of the twentieth century.
Following the New Deal, banking law imposed significant restrictions on the ability of banks to expand in scale or scope, resulting in a proliferation of small, community-oriented banks. At the same time, banking law also limited entry, allowing banks to often operate as local monopolies or oligopolies, insuring deposits, and limiting the ability of banks to pay interest on deposits. By supporting the profitability of banks and the value of a bank charter, these guarantees and restraints made bankers less inclined to take risks that might result in their bank failing. The net result was a banking system that was both remarkably stable and remarkably diffuse. Although the same conditions cannot be readily replicated today, understanding the way banking law simultaneously promoted stability and broad economic opportunity is critical to understanding the ways that banking law has, and could again, serve Brandeisian aims
Rebutting 33 False Claims About Solar, Wind, and Electric Vehicles
Get PDFAchieving the United States’ ambitious emissions reduction goals depends in large part on the rapid adoption of wind and solar energy and the electrification of consumer vehicles. However, misinformation and coordinated disinformation about renewable energy is widespread and threatens to undermine the transition. In this report, the Sabin Center identifies and examines 33 of the most pervasive false claims about solar energy, wind energy, and electric vehicles, with the aim of promoting a more informed discussion
The Making of Presidential Administration
Get PDFToday, the idea that the President possesses at least some constitutional authority to direct administrative action is accepted by the courts, Congress, and the legal academy. But it was not always so. For most of American history — indeed until relatively recently — Presidents derived their authority over the administrative state largely from statute. Any role for the White House in agency rulemaking or adjudication had to be legally specified. Scholars mostly agree about when this change occurred. But the dominant shared narrative — exemplified by then-Professor Elena Kagan’s seminal article Presidential Administration — is Whig history. It offers a depoliticized interpretation that presents White House primacy as the product of steady progress toward greater administrative rationality.
This Article offers a historical corrective. It explains how “administration under law” was lost and replaced with a new constitutional baseline, “presidential administration.” It is both an account of constitutional change — how one understanding of constitutional text and structure gave way to a different one — as well as a history of the regulatory state and how, beginning in the 1980s, federal officials reworked the relationship between the President, Congress, and administrative agencies in order to expand the role of market actors in governing economic activity. The Article draws attention to the intense political conflict that accompanied the advent of presidential administration. What is today bipartisan was originally nothing of the sort. It also reveals how a new interpretation of Article II took hold without any fundamental doctrinal or statutory change or shift in formal law. It highlights the emergence of a neoliberal consensus around aspects of economic regulation that incentivized and buttressed presidential administration as an approach to administrative governance. And it reveals the relative novelty of originalist arguments about the “Unitary Executive.