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Exemplary Legal Writing 2021: Four Recommendations
Get PDFThis is not the first great book that Erwin Chemerinsky, Dean of Berkeley Law School, has authored, but it is perhaps his most chilling. For in 308 pages of tightly reasoned detail, he demonstrates beyond cavil how the Supreme Court of recent decades (and well before the addition of the Trump appointees) undertook to undercut most of the reforms by which the Warren Court had sought to reduce police misconduct
Understanding Intellectual Property: Expression, Function, and Individuation
Get PDFUnderlying the fundamental structure of intellectual property law — specifically, the division between copyright and patent law — are at least two substantive philosophical assumptions. The first is that artistic works and inventions are importantly different, such that they warrant different legal systems: copyright law on the one hand, and patent law on the other. And the second is that particular artistic works and inventions can be determinately individuated from each other, and can thereby be the subjects of distinct and delineated legal rights. But neither the law nor existing scholarship provides a comprehensive analysis of these categories, what distinguishes them, or why their distinctions should matter to law.
This Article seeks to substantiate and unify these assumptions, taking the most striking doctrinal difference between copyrights and patents as its theoretical starting point: namely, that copyright law has an independent creation defense while patent law does not. Endeavoring to vindicate this doctrinal distinction with a theory of what distinguishes the paradigmatic subject matters of copyrights and patents, this Article defends the view that artistic works are author-individuated, while inventions are structure-individuated. It draws on philosophical thinking, thought experiments, and existing practices surrounding expression and functionality to argue that, although two distinct inventive acts can result in the very same invention, two distinct acts of authorship — even ones resulting in works that are “structurally” identical — cannot result in the very same artistic work, because the identity of the author in part makes the work what it is. The Article explains how these “individuation theses” vindicate, not just copyright and patent law’s differential treatment of independent creation, but other core features of intellectual property’s defining bifurcation, and then goes on to analyze the theses’ implications for different theories of what justifies intellectual property rights. Finally, the Article explores aspects of existing law that might be in tension with this conception of artistic works and inventions and thus ought to be revised to better reflect and incorporate it, if the individuation theses are indeed getting things right
Gellhorn and Byse\u27s Administrative Law: Cases and Comments
No full textThe 13th edition of this comprehensive Casebook draws from its history and current debates to create a lively and rich set of materials appropriate for introductory as well as advanced courses. It contains a substantial chapter on legislative process and statutory interpretation so that the Casebook can be used for an introductory legislation and regulation course as well as for administrative law classes.
With one new editor (Eloise Pasachoff, Georgetown University), this latest edition makes a number of changes: Pares down material from the 12th edition, with shorter excerpts and consolidated notes throughout. Includes the latest administrative law decisions from the Supreme Court, often as lead cases, such as West Virginia v. EPA, United States v. Arthrex, Seila Law v. CFPB, FCC v. Prometheus Radio, Wooden v. United States, Concepcion v. United States, Carr v. Saul, TransUnion v. Ramirez, and more. Includes relevant new cases from the courts of appeals and district courts, addressing topics such as the constitutionality of SEC ALJ adjudications, decisionmaker bias, length of comment periods, application of Kisor v. Wilkie, Chevron waiver, and more. Replaces some teaching cases with material that is more accessible to students, including a new case for “logical outgrowth” and new materials on exceptions to notice-and-comment rulemaking. Updates transparency materials to cover the latest Supreme Court decisions on FOIA exemptions, address current events and disputes (including over the Presidential Records Act and various privileges), and show how the mandates from the 2016 FOIA Amendments have been litigated. Discusses the end of the Trump Administration and first 20 months of the Biden Administration, including firings or forced resignations of agency leaders, reversals in presidential directives and agency policies, rulemaking trends, the COVID-19 pandemic, and more. Adds new material on public administration and budgeting. Updates factual, legal, and policy materials throughout the book, with a focus on current issues and examples that appeal to students.
The Casebook continues to incorporate primary materials outside of judicial decisions (including statutes, administrative materials, IG and GAO reports, and proposed legislation). It also uses a wide range of secondary materials, from law review articles (classic and recent) to social science studies to think tank reports. And it considers strategic choices by agencies and challengers to agency action, not only in the courts but also in the White House and Congress.https://scholarship.law.columbia.edu/books/1401/thumbnail.jp
Pragmatic Family Law
Get PDFFamily law is a central battleground for a polarized America, with seemingly endless conflict over abortion, parental control of school curricula, gender-affirming health care for children, and similar flash points. This is hardly surprising for an area of law that implicates fundamental concerns about equality, bodily autonomy, sexual liberty, gender norms, parenting, and religion. Polarization poses significant risks to children and families, but centering contestation obscures another important reality. In many areas of doctrine and policy, family law has managed to avoid polarization, even for politically and socially combustible issues. Instead, states are converging on similar rules and policies, working toward consensus on once-divisive issues, and settling into a pluralism that does not line up neatly with the red-blue divide.
What ties together these widespread but underappreciated patterns of convergence, depolarization, and nonpartisan pluralism? This Article argues that a deep, underlying commonality is a pragmatic method of decision- and policymaking. Polarization has a long history in the United States, but so, too, does pragmatism. With roots in nineteenth-century philosophy and now deployed by advocates and scholars in multiple contexts and disciplines, the living tradition of American pragmatism rejects contestation over abstract ideals in favor of solving problems through experience-based learning, experimentation, application of empirical evidence, and contextualized decisionmaking. As this Article demonstrates, across contemporary family law, judges and policymakers are eschewing debates about political ideology and instead are focusing on whether a doctrine or policy works to enhance specific, concrete, and relatively uncontested aspects of child and family well-being. These legal actors base decisions on available evidence and center the lived experience of those enmeshed in the legal system. And they tailor each decision to its specific context.
Recognizing a common methodological foundation — what this Article calls pragmatic family law — has implications for scholars, legal actors, and advocates. Crystallizing the distinct approach to decision- and policymaking highlights its utility in advancing well-being and encourages legal actors and advocates to use the method more intentionally. It invites scholars to weigh the advantages of this approach against others, notably rights-based litigation and values-based debate. And it demonstrates how pragmatism can recalibrate family law doctrine to mitigate concerns about indeterminacy and provide direction for institutional reform.
Identifying pragmatism as a distinct approach also underscores its significant limitations, especially in addressing the root causes of racial inequity. Many instances of pragmatic family law equally or disproportionately benefit children and families of color, but these doctrines and policies are typically framed in race-neutral terms. When a problem is understood to affect primarily families of color, too often lawmakers do not develop pragmatic solutions. Accordingly, pragmatic family law has had limited traction in dismantling structural inequity — at least thus far. In short, pragmatic family law is no panacea
Effective Shareholder Engagement to Address the Food Sector’s SDG-Related Impacts in Mexico
Get PDFWhile investor engagement on environmental and social issues have grown in recent years, they remain limited in Mexico and other emerging markets.
Investors have an opportunity to do more to help address critical SDG-related issues in these contexts through their active ownership efforts. By doing so, they can be more responsible in ensuring respect for human rights, protecting shared systems, and supporting their long-term financial interests. Importantly, they can also ensure they comply with – and support their portfolio companies in complying with – emerging legal frameworks requiring reporting and due diligence on the impacts of their global value chains.
In our new report, Effective Shareholder Engagement to Address the Food Sector’s SDG-Related Impacts in Mexico, CCSI summarizes key opportunities and barriers facing investors who wish to more actively drive positive SDG outcomes in Mexico’s food sector through shareholder engagement.
The report explores the food sector-related SDG challenges in Mexico, the influential companies investors can engage with, relevant benchmarks of those companies, the status of sustainable investing in Mexico, and the extent and nature of investor influence over companies in Mexico. Based on this, the report provides recommendations on how active investors can best exercise their leverage in the particular context of Mexico’s food sector
Climate Change in the Courts: A 2023 Retrospective
Get PDFDrawing from the jurisdictions covered in the Sabin Center\u27s United States (U.S.) and Global Climate Litigation databases, this report offers insights into key developments, emerging themes, evolving legal strategies, and the pulse of climate litigation in 2023
Comparing Agency Costs in Contract Production: Private Equity M&A Versus Corporate and Sovereign Bonds
Get PDFDifferent areas of transactional practice, such as M&A or high-yield bonds and sovereign bonds, vary in terms of the degree to which they are afflicted by agency problems. In some areas, clients are actively involved in deal making, and in others they are not present until well after the deal is done. If vulnerability to agency problems differs, and these agency problems impact the quality of contract production, one would expect those differences to appear when comparing contract production across practice areas. This Article compares one feature of contract production — the problems of encrusted and sticky boiler-plate — across four different deal types where the degree of agency problems is likely to vary. We find that private equity M&A lawyers, who have the highest degree of client monitoring, innovate in order to repair problems in the deal documents more rapidly than do the other deal types. However, we also find that these private equity M&A contracts have more obsolete and encrusted terms than do corporate or sovereign bonds
\u3cem\u3eChevron\u3c/em\u3e\u27s Ghost Rides Again
Get PDFProfessor Gary Lawson has offered a remarkable account of the fate of the Chevron doctrine during a recent year in the Supreme Court, from August 2021 to June 2022. When one examines lower court decisions, petitions seeking review of those decisions, briefs filed by the parties, and transcripts of oral arguments, Chevron made frequent appearances during the year. But when one reads the published opinions of the Court, one finds virtually no reference to Chevron. Based on the published opinions of the Court, it was as if the Chevron decision did not exist.
The status of Chevron as a ghostly doctrine is even more striking, given its ubiquity for more than three decades. Chevron is the most cited decision in administrative law. Most commonly, Chevron refers to a framework for reviewing interpretations by agencies of the statutes that they administer: first, a court exercises independent judgment to ascertain whether Congress has answered the question; if not, the court considers whether the agency’s interpretation is a reasonable one. By one count, the Court itself applied Chevron’s “two step” approach to judicial review in over one hundred cases. Then, starting in 2013, various Justices began issuing separate opinions complaining about one or more aspects of Chevron. After 2016, the two-step doctrine ceased to be used by the Court in reviewing agency determinations of the meaning of the laws they administer. Justice Alito, a close witness to what was happening, observed that the Court was “simply ignoring Chevron,” which he characterized as “an important, frequently invoked, once celebrated, and now increasingly maligned precedent.”
The Court has recently granted certiorari in a case called Loper Bright Enterprises v. Raimondo, which presents the question “[w]hether the Court should overrule Chevron or at least clarify that statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency.” So perhaps clarification of Chevron’s status will be forthcoming in the 2023 Term. Or perhaps not: the Court could confine itself to the second half of the question presented, whether statutory silence should be construed as a condition sufficient to trigger Chevron deference. Or, as in the cases of 2021-22 discussed by Professor Lawson, the Court could decide once again to resolve the question at issue in Loper Bright without any mention of Chevron
The Author as Revenue Sharer: Lecture in Memory of William R. Cornish
No full textThis article returns to a topic Prof Cornish examined in his 2002 Manges Lecture at Columbia Law School: the role of copyright law in providing fair remuneration to authors. Since Prof Cornish’s lecture, the EU has announced an author’s right to fair remuneration and has enacted a Directive designed to make that right effective.
This article explores the relevant provisions of the 2019 Digital Single Market Directive, and then examines ways in which exploiters might manipulate the rules of private international law to circumvent Union guarantees.
It concludes by considering the extent to which platform Terms of Service might also render fair remuneration rights toothless, through mass-market non-negotiated ‘free’ licenses to use the works that authors post to platforms such as Instagram, YouTube and ‘X’ (Twitter)
CRT2 S1E1
No full textPhoto of Vivian Nixon, Writer-in-Residence at the Square One Project and former Executive Director of the College and Community Fellowship.https://scholarship.law.columbia.edu/crt2_podcast/1004/thumbnail.jp