Global Health Research Center of Central Asia
Columbia Law School Scholarship ArchiveNot a member yet
5770 research outputs found
Sort by
Law as Persuasion
Get PDFWhen does the law persuade us about what is right or wrong – and when does it not? On topics ranging from racial equality to abortion to same-sex marriage, historians have debated and puzzled over the law’s persuasive force on our collective moral intuitions. Meanwhile, other scholars have sought out individual-level insights into the psychology of law’s persuasion, under the microscope of controlled experiments.
This chapter presents evidence of the law’s influence on our moral intuitions in a survey experiment based on a classic dilemma known as the “trolley problem,” in which someone must make a choice about whether to turn a runaway train, actively harming one person but saving more people by doing so. This sacrificial dilemma is a familiar reference in legal and policy discussions of harm–harm trade-offs, or “tragic choices. Such a scenario is also well-suited for studying the law’s possible influence, as it is not an easy moral call, and “[e]specially under conditions of uncertainty, people look for information in their environment that provide credible clues for making judgments. In the trolley problem, such uncertainty occurs not because our moral intuitions are weak or amorphous; rather, it is because forceful intuitions are set in contest: we must save more people, and yet we must not actively cause anyone harm
Delegating War Powers
Get PDFAcademic scholarship and political commentary endlessly debate the President’s independent constitutional power to start wars. And yet, every major U.S. war in the last sixty years was fought pursuant to war-initiation power that Congress gave to the President in the form of authorizations for the use of military force. As a practical matter, the central constitutional question of modern war initiation is not the President’s independent war power; it is Congress’s ability to delegate its war power to the President.
It was not until quite late in American history that the practice of war power delegation became well accepted as a domestic law basis for starting wars. This Article examines the development of war power delegations from the founding era to the present to identify when and how war power delegations became a broadly accepted practice. As this Article shows, the history of war power delegation does not provide strong support for either of two common but opposite positions: that war power, as a branch of foreign affairs powers, is special in ways that make it exceptionally delegable; or that it is special in ways that make it uniquely nondelegable. More broadly, that record counsels against treating “foreign affairs delegations” as a single category, and it reveals that constitutional questions of how Congress exercises war power are as significant as whether it does
Accounting for the Employee-Employer Relationship in Antitrust Analysis
Get PDFRecent years have seen increased regulatory scrutiny of and private litigant claims regarding potential monopsony power in labor markets. In this paper, we discuss a defining feature of that analysis — a feature that differentiates it from antitrust analysis of product-market restraints. That feature is the employee-employer relationship. Employer-employee relationships, and investments that workers and firms make in such relationships, are central to analysis of antitrust issues in labor markets
Publicizing Corporate Secrets
Get PDFFederal regulatory agencies in the United States hold a treasure trove of valuable information essential to a functional society. Yet little of this immense and nominally “public” resource is accessible to the public. That worrying phenomenon is particularly true for the valuable information that agencies hold on powerful private actors. Corporations regularly shield vast swaths of the information they share with federal regulatory agencies from public view, claiming that the information contains legally protected trade secrets (or other proprietary “confidential commercial information”). Federal agencies themselves have largely acceded to these claims and even fueled them, by construing restrictively various doctrines of law, including trade secrecy law, freedom of information law, and constitutional law. Today, these laws — and fear of these laws — have reduced to a trickle the flow of information to the public. This should not and need not be the case.
This article challenges the conventional wisdom that trade secrecy law restricts public agencies’ power to publicize private businesses’ secrets. In fact, federal agencies, and regulatory agencies especially, have long held and still hold statutory and constitutional authority to obtain and divulge otherwise secret information on private actors, when doing so serves the public interest. For many regulatory agencies, that authority extends even to bona fide trade secrets. In an age of “informational capitalism,” this disclosure authority makes U.S. federal regulatory agencies uniquely valuable — and perhaps uniquely dangerous. Building on recent work that explores this right in the context of drugs and vaccines, and drawing heavily from scholarship in privacy and information law, the article proposes a practical framework that regulators can use to publicize secret information in a way that maximizes public benefit and minimizes private harm. Rather than endorse unconstrained information disclosure — transparency for transparency’s sake — this article instead proposes controlled “information publicity,” in which regulators cultivate carefully bounded “gardens” of secret information. Within these gardens, agencies admit only certain users and certain uses of information. Drawing on existing but largely overlooked real-world examples, the article shows that regulators can effectively and selectively publicize trade secret information to noncommercial users while thwarting commercial uses. Regulators can protect trade secrets’ integrity vis-à-vis competitors while simultaneously unlocking new, socially valuable uses
Disabling Travel: Quantifying the Harm of Inaccessible Hotels to Disabled People
Get PDFDuring its 2023–2024 term, the U.S. Supreme Court will decide a case with significant implications for the future of the Americans with Disabilities Act (ADA). In Acheson Hotels v. Laufer, the Court will determine whether a civil rights “tester” plaintiff has Article III standing to sue a hotel for failing to provide information about the hotel’s accessibility online — in violation of Department of Justice (DOJ) regulations applying the ADA’s requirement of “reasonable modifications in policies, practices, or procedures” — when the plaintiff did not intend to book a hotel reservation. Plaintiff-Respondent Deborah Laufer has not only challenged the failure of Acheson Hotels to provide required information, but has also filed over 600 similar lawsuits, showcasing system-wide violations of the ADA’s “Reservation Rule.”
The Reservation Rule (“the Rule”), promulgated in 2010, requires hotels to make accessibility information available “through [their] reservations service[s] in enough detail to reasonably permit individuals with disabilities to assess independently whether a given hotel or guest room meets his or her accessibility needs.” The Rule also requires hotels to deliver accessible rooms in the same manner and during the same hours as inaccessible rooms, to hold accessible rooms for individuals with disabilities, and to guarantee that an accessible room reservation is held for the reserving customer. Among the motivations for the Rule’s passage were widespread complaints related to accessibility in the hotel reservation process. During the Rule’s notice and comment period, which began in 2008, industry representatives advocated for language that required hotels to treat disabled individuals in “a substantially similar manner” to nondisabled guests; the Department did not accept this suggested language, and the Rule instead requires hotels to treat disabled individuals “in the same manner” as nondisabled individuals. Hotels had an 18-month transition period to implement the changes. The American Society of Travel Agents, Inc. (at the time “the world’s largest association of professional travel agencies”) filed a comment with the DOJ in support of “parity in reservations policies” and explained that, to achieve that goal, hotels are best positioned to provide accurate accessibility information.
Hotels’ noncompliance with Title III of the ADA, and with the Reservation Rule in particular, is pervasive, and tester plaintiffs play a key role in enforcing the law. The ADA’s enforcement scheme depends in large part on private lawsuits to compensate for the limited resources of its designated enforcement agency, the DOJ. The burdens of filing suit and obtaining injunctive relief, however, are significant for the individuals on whom the ADA relies, the very same individuals who rely on the Act for the opportunity to, as Jacobus tenBroek famously put it, “live in the world.” Because damages are unavailable for violations of the Rule, suits for injunctive relief need to be filed before a problem arises: Injunctive relief is relatively useless for those who are denied accessibility information about public accommodations. Any injunction would take effect long after the disabled traveler needed the accessibility information. These obstacles undermine the affirmative duty that the Reservation Rule places on businesses to acknowledge and account for disabled individuals before those individuals need to book their reservations. Tester litigation helps to secure the services proposed by the Reservation Rule and to deliver on the regulation’s promise of equal efficiency, immediacy, and convenience
Beyond the North–South Divide: Litigation\u27s Role in Resolving Climate Change Loss and Damage Claims
Get PDFWithin the international climate regime, legal aspects surrounding loss and damage (L&D) are contentious topics, implicating liability, compensation and notions of vulnerability. The attribution of responsibility and the pursuit of redress for L&D present intricate legal and governance challenges. The ongoing debates under the United Nations Framework Convention on Climate Change are characterized by a pronounced North–South divide and have done little to provide tangible support to those most affected by L&D. This apparent neglect has prompted exploration of alternative avenues for climate harm redress. The burgeoning field of litigation for liability and compensation of climate harm holds potential significance for L&D discourse, but its efficacy, especially in compensation claims relating to the adverse effects of climate change, is uncertain. There is, as yet, no precedent of plaintiffs succeeding in an L&D case, with numerous legal, evidentiary and practical barriers persisting, particularly for Global South plaintiffs aiming to hold Northern governments and actors accountable. This article scrutinizes recent advances in climate litigation and their potential to facilitate or obstruct L&D litigation. Focusing on seminal L&D cases, namely, Lliuya v RWE and Asmania et al v Holcim, we present a novel legal critique of climate litigation\u27s capacity to assist climate-vulnerable States, populations and communities in pursuing redress for L&D, based on pertinent case law and an examination of overarching issues of attribution and extraterritorial jurisdiction
Digital Empires: The Global Battle to Regulate Technology
No full textThe global battle among the three dominant digital powers—the United States, China, and the European Union — is intensifying. All three regimes are racing to regulate tech companies, with each advancing a competing vision for the digital economy while attempting to expand its sphere of influence in the digital world. In Digital Empires, her provocative follow-up to The Brussels Effect, Anu Bradford explores a rivalry that will shape the world in the decades to come.
Across the globe, people dependent on digital technologies have become increasingly alarmed that their rapid adoption and transformation have ushered in an exceedingly concentrated economy where a few powerful companies control vast economic wealth and political power, undermine data privacy, and widen the gap between economic winners and losers. In response, world leaders are variously embracing the idea of reining in the most dominant tech companies. Bradford examines three competing regulatory approaches — the American market-driven model, the Chinese state-driven model, and the European rights-driven regulatory model — and discusses how governments and tech companies navigate the inevitable conflicts that arise when these regulatory approaches collide in the international domain. Which digital empire will prevail in the contest for global influence remains an open question, yet their contrasting strategies are increasingly clear.
Digital societies are at an inflection point. In the midst of these unfolding regulatory battles, governments, tech companies, and digital citizens are making important choices that will shape the future ethos of the digital society. Digital Empires lays bare the choices we face as societies and individuals, explains the forces that shape those choices, and illuminates the immense stakes involved for everyone who uses digital technologies.https://scholarship.law.columbia.edu/books/1366/thumbnail.jp
Authors\u27 Copyright (?)
No full textThis chapter takes inspiration from Professor Rochelle Dreyfuss’ important early article on United States’ copyright’s works made for hire doctrine, The Creative Employee and the Copyright Act of 1976. Bucking the tide of law and economics analyses of intellectual property rights, Dreyfuss contended that ‘attention to nonpecuniary, author-based interests is necessary in order to take full advantage of the talents of the creative and to, in the words of the Constitution, “promote the Progress of Science and useful Arts”.’ She demonstrated that even when authors have little economic stake in the control of their creative outputs, ‘vesting the creative with copyright ownership produces non-pecuniary benefits both to the creative and to the public.’ Indeed, ‘[s]evering financial considerations from other creative concerns harms not only the interests of authors in the integrity of their work and in their reputation, but those of the public in high-quality, accessible, creative material.’
Professional authors reinforce Dreyfuss’ insights. Pulitzer Prize-winning playwright Doug Wright explained that he makes money from writing screenplays (over which he will have no creative control),
But if I have a truly original idea, one I’ve dredged up from my soul, I’m saving it for the stage. I have to protect my heart. … [C]opyright guarantees us only one thing, one ephemeral, fleeting, but indispensable thing: our singularity as artists. … Because of copyright, I get to be the CEO of my own imagination. When I create a work, copyright acknowledges that it belongs to me as fully as a newborn belongs to its mother. And just like a parent, I am granted responsibility for its future. … Copyright acknowledges that fearless act of creation and self-disclosure, and gives it worth. It says, ‘This play is the result of one man’s wish to forge a universal human truth from his own hardship, his own pain, and bequeath it to us in a meaningful and generous way. For the health of the culture, we must honor that gesture. We must give it value.’ … [C]opyright keeps our art, the theater … alive. For playwrights like me, copyright doesn’t provide incentives; it is the incentive.
Dreyfuss and Wright concur that vesting copyright in authors favors creativity because authors care not only about making a living, but also, and especially, about controlling how their works are disclosed and exploited. We ignore authors’ non-pecuniary interests at the peril of our culture. This chapter builds on their exploration of authors’ copyright, but extends the inquiry to economic as well as non-pecuniary rights
The Possibility of Modern India
No full textThe history of modern constitutionalism has immortalized several events of much moment. It has, however, cast scant attention upon a great deal other episodes that merit greater engagement. Among this latter category is the making of modern India – the crafting of the constitutional text that would create the world’s largest democracy. The Indian case invites attention not merely because of its size but rather because of its conditions. This postcolonial experiment involved the coming together of democratization and constitution-making in a setting that was poor, uneducated, and divided, and one that was stepped in centuries of tradition. Unlike in the West where voting rights were expanded gradually in settings that witnessed the spread of wealth and literacy and the cementing of administrative institutions, India reversed the historically ordained process to self-rule. For India’s founders, democratic citizens were to be created through democratic practice
Just Transition Litigation in Latin America: An Initial Categorization of Climate Litigation Cases Amid the Energy Transition
Get PDFJust transition litigation is a novel field representing a sub-set of climate change litigation cases that is under-researched and studied. The report provides a novel comparative analysis of legal developments found in 20 just transition litigation cases in four Latin American countries and questions whether initiatives for achieving energy transformation in the region may have erred in failing to consider key just transition principles or dimensions, leading applicants to bring legal cases to claim their rights or demand more just solutions. The cases found – limited to the energy sector – not only question decarbonization policies or projects (in typical anti-climate cases) but also challenge subsidies to fossil fuels or other incentives contrary to a just transition. Based on this subset of cases, the report proposes an initial categorization of just transition litigation