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Reading Fanon
Get PDFThe 2024 Ambedkar Law Lectures focus on the writings of Frantz Fanon, the revolutionary theorist whose works were seminal to African anticolonialism. Born in 1925 in Martinique, Fanon fought in World War II, then practiced psychiatry in a hospital in French-controlled Algeria while supporting the country’s war for independence.
Fanon is one of the twentieth century’s most important theorists of colonialism, revolution, and freedom and the lectures explore Fanon’s theorizing of the relationship between violence and freedom through a study of his two major works, Black Skin, White Masks and The Wretched of the Earth
Fund Kinship Caregivers to Help Keep Families Together, Not Separate Them
Get PDFMoney impacts relationships. And when the money involved is a foster care subsidy to kinship caregivers, it can drive a wedge in relationships between parents and kinship caregivers that should be strengthened, not strained. Unfortunately, foster care funding incentivizes the “relational disruption”1 endemic to foster care, when it should instead support family members coming together to support each other and their children.
In contrast, Medicaid funding has increasingly supported family members taking care of each other and can provide child welfare with a model for funding family caregiving without disrupting relationships and without even requiring a family court or foster care case
Operationalizing the Search for Less Discriminatory Alternatives in Fair Lending
No full textThe Less Discriminatory Alternative is a key provision of the disparate impact doctrine in the United States. In fair lending, this provision mandates that lenders must adopt models that reduce discrimination when they do not compromise their business interests. In this paper, we develop practical methods to audit for less discriminatory alternatives. Our approach is designed to verify the existence of less discriminatory machine learning models – by returning an alternative model that can reduce discrimination without compromising performance (discovery) or by certifying that an alternative model does not exist (refutation). We develop a method to fit the least discriminatory linear classification model in a specific lending task – by minimizing an exact measure of disparity (e.g., the maximum gap in group FNR) and enforcing hard performance constraints for business necessity (e.g., on FNR and FPR). We apply our method to study the prevalence of less discriminatory alternatives on real-world datasets from consumer finance applications. Our results highlight how models may inadvertently lead to unnecessary discrimination across common deployment regimes, and demonstrate how our approach can support lenders, regulators, and plaintiffs by reliably detecting less discriminatory alternatives in such instances
How the International Investment Law Regime Undermines Access to Justice for Investment-Affected Stakeholders
Get PDFFor over a decade now, the international investment law regime, which includes investment treaties and their central pillar, the investor-state dispute settlement (ISDS) mechanism, has been facing sustained calls for reform. These have largely centered on the concerns regarding the high costs of ISDS, the restrictions placed by the investment treaty regime on the right—or duty—of states to regulate in the public interest, and the questionable benefits arising from these treaties in the first place. Several states have taken proactive measures: some have revised investment treaty standards to better protect their regulatory powers; others have introduced new approaches to investment promotion, protection, and dispute settlement that more closely align with their sustainable development objectives; and some states have withdrawn from the investment treaty regime altogether. In addition, reforms to the regime are taking place at the multilateral level within the United Nations Commission on International Trade Law (UNCITRAL), the Organization for Economic Cooperation and Development (OECD), the World Trade Organization (WTO), and through other regional fora.
Despite being the subject of extensive and prolonged public debate for several years, these reforms have continued to reinforce the binary structure of the regime. This structure restricts the focus of investment relations solely to investors and host states, disregarding the actual or potential impacts of investment projects, relations, disputes and awards on the rights and interests of other impacted stakeholders. In particular, large-scale, land-based investment projects involve a broad network of people and relations, and often intersect with local communities whose social identity, way of life, and livelihoods are intimately connected to the land and natural resources at stake. It is this category of investments, which result in the creation of a new “project” with a large land footprint, that is the topic of this paper. The consequences of these types of investments can be significant, as they often lead to land expropriations, negative human health consequences, water pollution, air contamination, deforestation, or shifts in migration patterns within the area, thereby impacting the rights and interests of people in these communities and the environment more broadly
New York Environmental Legislation in 2023
Get PDFIn 2023, New York enacted laws to aid the state in achieving the renewable energy and greenhouse gas emissions reduction mandates of the 2019 Climate Leadership and Community Protection Act (CLCPA).The state also now has new laws to reduce exposure to lead in drinking water and paint; to ban natural gas furnaces and stoves in new buildings; to restrict neonicotinoid pesticides; and to encourage “nature-based solutions” for stabilizing tidal coastlines. These and other new and amended environmental and energy laws—as well as notable vetoes—are discussed in this article
A Legal Herstory of WWII ‘Comfort Women’ — Chapters: Past, Present, and Beyond
Get PDFThis paper delves into the legal accountability and historical narrative, which go hand in hand, surrounding the comfort women system implemented by the Imperial Japanese Army during WWII. These women, including my late grandmother from South Korea, were forced into sexual slavery, servicing Japanese soldiers across the Asia-Pacific. Despite being one of the most significant atrocities in history, with victims from 10 countries and between 20,000 to 500,000 individuals, the plight of comfort women remains relatively unheard of.
The politicization of the comfort women movement has been a barrier to both acknowledgment and justice. My grandmother\u27s silence for 80 years reflects the complex interplay of shame, fear, and the manipulation of survivors’ narratives by political agendas. This politicization has led to the marginalization of survivors in monumental historical and legal discourses, including treaty negotiations and any relevant discussions with Japan.
Central to my grandmother\u27s concerns were the possibilities for legal redress and acknowledgment of individual criminal responsibility at the post-WWII tribunals and the outcome of a hypothetical ICC trial. These questions anchor the scholarship presented in this paper, which seeks to expand the criminal responsibility record of WWII Japanese government and military leaders regarding the comfort women system.
This research unfolds across several sections. Initially, it explores the emergence of the comfort women reparation movement, the delayed public recognition of these atrocities, and the global litigation efforts to secure justice for survivors. Subsequently, it argues that a substantial body of evidence exists capable of establishing the systematic and bureaucratic nature of the system. Despite the limitations of international criminal law during the Nüremberg and IMTFE eras, this paper posits that the IMTFE could have feasibly extended arguments that crimes against humanity had been committed by Japanese leaders for their role in the enslavement of comfort women.
Further, the paper examines the WIWCT\u27s successful attribution of criminal responsibility to Japanese officials, enabled by advancements made during the ICTY and ICTR towards the legal understanding of sexual violence and slavery, as well as shifts in societal attitudes towards women in the 1990s. Additionally, it considers how the Rome Statute\u27s detailed provisions on crimes against humanity could hypothetically be relied upon by comfort women survivors to pursue justice if any perpetrators remained alive today.
Essentially, this paper is a granddaughter\u27s effort to reconcile her grandmother\u27s lingering questions with the evolving landscape of international criminal law. It highlights the enduring relevance of the comfort women narrative in discussions on gender equality, sexual subjugation, and legal redress for wartime atrocities. This effort advocates for continued scholarship and legal scrutiny to properly understand the mechanics of the comfort women system and the socio-political dynamics involved, to prevent the recurrence of similar atrocities, and to honor the legacy of comfort women
It Is (Finally) Time for and Advisory Opinion on Climate Change: Challenges and Opportunities on a Trio of Initiatives
Get PDFIn recent years, the number and diversity of climate-related lawsuits have increased, with courts in over seventy jurisdictions now handling such cases. After the expansion through domestic courts, stakeholders worldwide are turning to international courts and tribunals to help define the responsibilities of states in light of the climate crisis. Three initiatives requesting advisory opinions to international courts or tribunals have been announced within six months. These advisory opinions could have significant implications for international climate change law, defining the human rights obligations of states (and potentially corporations) in light of the climate crisis. It is expected the International Court of Justice, the International Tribunal on the Law of the Seas, and the Inter-American Court of Human Rights will publish advisory opinions on climate change in 2024–2025. These advisory opinions are nonbinding. Nonetheless, the rank and prestige of the court and tribunals involved convey the importance and influence of advisory opinions in articulating states’ obligations under international law. The advent of these advisory opinions makes this a momentous occasion for global climate litigation, with the world’s highest courts weighing in on the legal rights and duties related to the climate crisis.
This article traces the beginnings of the trio of requests, placing them within the context of global climate litigation. It discusses why the time is ripe for these advisory opinions’ contributions to developing international climate-change law while comparing the legal questions posed to the judicial bodies. The article further discusses the challenges and opportunities these requests present
Standing Between Private Parties
Get PDFStanding is generally framed as a doctrine about plaintiffs. The basic question, the Supreme Court has said, is “whether the plaintiff is the proper party” to invoke the federal judicial power. Asking that question tends to obscure a natural corollary: Against whom? This Article attends to the other side of the “v.” It argues that suits against private parties should be treated differently from suits against government officials for standing purposes because these two types of suits raise different structural concerns. Notwithstanding its focus on plaintiffs, the Supreme Court has said repeatedly that standing is “built” on the “single basic idea” of “the separation of powers.” When a government official is sued, a particular structural problem arises: If a court entertains the suit, it will be put in the position of supervising another branch of the government. And without some sort of injury requirement, the political branches might be subjected to continuous judicial oversight. As a historical matter, Article III standing doctrine developed primarily in this context.
But the structural concern prompted by that context is absent when one private party sues another private party. There is no prospect that such a suit will yield a remedy against a government official. The suit may, of course, raise other constitutional problems, but those other problems should not be shoehorned into standing — an avowedly transsubstantive jurisdictional doctrine that derives from Article III.
This theoretical claim is bolstered by a striking fact: Until 2020, the Supreme Court had never dismissed a case for lack of Article III standing when the defendant was a private party on the ground that the injury alleged was insufficient. And, as it followed this pattern, the Court was notably more generous in recognizing standing in cases against private parties than in cases against governmental parties.
But the Court recently broke this pattern. In two closely divided opinions, the Court held — for the first time — that private parties could not sue other private parties because the injuries alleged were inadequate. Congress’s attempt to authorize those suits thus violated Article III. This paper critiques those decisions, situates them in the broader arc of the development of standing law, and surveys the prospects for doctrinal reconstruction. To do so, it proposes a novel framework to return the law of standing to its historical and conceptual moorings. Under that framework, standing doctrine should not limit Congress’s (or the states’) power to authorize lawsuits between private parties in federal court
Climate Change and Human Health: A Synthesis of Scientific Research and State Obligations Under International Law
Get PDFThis report synthesizes the latest scientific research on the human health effects of climate change and discusses the legal implications of this research, specifically with regards to State obligations under international law. In doing so, the report seeks to provide insights on issues to be analyzed by the International Court of Justice (ICJ) in its upcoming advisory opinion on the legal obligations of States with respect to climate change. It also seeks to enhance the capacity of judges, advocates, and governments to understand these issues in the context of current and future proceedings involving international law obligations related to climate change and human health
Beyond Unprecedented S4 Ep2: Transportation of the Future: Market Drivers and Regulatory Roadblocks
Get PDFThe last decade has seen growing popularity of electric and self-driving vehicles. Xuan Sharon Di, an associate professor in the Department of Civil Engineering and Engineering Mechanics at Columbia University, discusses the current capabilities of, market for, and regulatory frameworks around electric and autonomous cars.https://scholarship.law.columbia.edu/beyond_unprecedented_4/1002/thumbnail.jp