Global Health Research Center of Central Asia
Columbia Law School Scholarship ArchiveNot a member yet
5770 research outputs found
Sort by
Misreading \u3cem\u3eCampbell\u3c/em\u3e: Lessons for \u3cem\u3eWarhol\u3c/em\u3e
Get PDFIn Andy Warhol Foundation (AWF) v. Goldsmith, the Supreme Court is set to revisit its most salient fair use precedent that introduced the idea of a “transformative use.” Purporting to rely on the Court’s adoption of “transformative use” as a way of understanding the fair use doctrine in Campbell v. Acuff-Rose Music, Inc., many lower courts, including the district court below, have effectively substituted an amorphous “transformativeness” inquiry for the full statutory framework and factors that Congress and Campbell prescribe. At the oral argument in AWF, the Justices focused on how the transformativeness of a work might be considered as part of the fair use doctrine and rendered compatible with copyright’s right to prepare derivative works. In this Essay, we argue that the answers to these questions lay in Campbell’s logic and careful analysis, where Justice Souter methodically and meticulously incorporated the idea of transformativeness into a rich understanding of the first fair use factor and the overall four-factor framework as a whole. As we show, Campbell paid special attention to concerns with the workability of this idea and its integration with the copyright scheme developed by Congress in the Copyright Act of 1976. The Court in AWF would benefit from a close reading of Campbell, which presciently foreshadowed and thoughtfully addressed the very questions before it today
Money and the Public Debt: Treasury Market Liquidity as a Legal Phenomenon
Get PDFThe market for U.S. government debt (Treasuries) forms the bedrock of the global financial system. The ability of investors to sell Treasuries quickly, cheaply, and at scale has led to an assumption, in many places enshrined in law, that Treasuries are nearly equivalent to cash. Yet in recent years Treasury market liquidity has evaporated on several occasions and, in 2020, the market’s near collapse led to the most aggressive central bank intervention in history.
This Article pieces together what went wrong and offers a new account of the relationship between money issue and debt issue as mechanisms of public finance. It argues that a high degree of convertibility between Treasuries and cash generally requires intermediaries that can augment the money supply, absorbing sales by expanding their balance sheets on both sides. The historical depth of the Treasury market was in large part the result of a concerted effort by policymakers to nurture and support such balance sheet capacity at a collection of nonbank broker-dealers. In 2008, the ability of these intermediaries to augment the money supply became impaired as investors lost confidence in their money-like liabilities (known as repos). Subsequent changes to market structure pushed substantial Treasury dealing further beyond the bank regulatory perimeter, leaving public finance increasingly dependent on high-frequency traders and hedge funds — “shadow dealers.” The near money issued by these intermediaries proved highly unstable in 2020. Policy makers are now focused on reforming Treasury market structure so that Treasuries remain the world’s most liquid asset class. Successful reform likely requires a legal framework that, among other things, supports elastic intermediation capacity through balance sheets that can expand and contract as needed to meet market needs
Provisions on Liability for Decommissioning Upstream Offshore Oil and Gas Infrastructure in Investor–State Contracts
Get PDFOffshore oil and gas operations are inherently hazardous to the environment, posing environmental risks and impacts throughout all stages of the operations: exploration, development, production, and decommissioning. Offshore decommissioning consists of the process of planning, funding, and implementing measures aimed at safely closing, repurposing, or removing the infrastructure and equipment used in the exploration and production of oil and gas in the marine environment, and at mitigating their impacts. It encompasses a series of activities, including the safe plugging and closure of wells, the removal of equipment and pipelines, the repurposing of platforms, the disposal of non-usable materials and potentially polluting products, and the cleaning of surrounding areas. In some cases, it also entails the rehabilitation of the extraction site as close as possible to its prior condition. Decommissioning typically occurs after the oil or gas resource is depleted or its production is economically unviable. The impacts of climate change, the imperative of the energy transition away from fossil fuels, and the adoption of increasingly stringent climate policies are likely to push the oil and gas sector to expedite the decommissioning of many of these operations, highlighting the need for robust regulation of liability for the decommissioning of oil and gas infrastructure.
Countries can use various legal instruments for governing oil and gas operations and their environmental risks and impacts, from statutes to decrees or regulations to investor–state contracts. Domestic statutes, decrees, and regulations are the ideal instruments to govern the environmental liability for decommissioning of offshore oil and gas infrastructure, since they apply across the industry and are, in principle, not subject to negotiation with private entities. Statutory and regulatory frameworks can establish the scope of decommissioning (activities, facilities, territory, timing, trigger, etc.), the minimum content and standard of obligations, and enforcement and funding mechanisms
Comments on Council Draft 7 [black letter and comments]
Get PDFCD7 adopts several of the suggestions in my comments on PD8; I appreciate those modifications. CD7 does not, however, respond to a number of other criticisms and suggestions regarding PD8. For the benefit of the Council, I reprise the suggestions that I consider to be most significant to ensuring the accuracy of the draft (page and line references have been changed to reflect CD7
In the Cross-Fire of International Arbitration and EU Law
No full textOver the past two decades, much has been said about the interaction between international arbitration and EU law. Although tensions had already been brewing for some time, when the award in an intra-EU case – Achmea – reached the European Court of Justice, this interaction came to the forefront like never before. It became obvious that each regime sees the other as a major challenge to the achievement of its own fundamental purposes.
Compliance with EU law demands is also regularly raised as a defense to otherwise valid claims against EU Member States, not only in investor-State arbitration, but also more broadly in commercial disputes as well.
This article traverses through time before and after Achmea covering decisions of various tribunals invited to adjudicate intra-EU disputes as well as those of courts across the world called upon to enforce agreements to arbitrate intra-EU investment disputes, set aside intra-EU awards, and give effect to intra-EU awards. Discussed hereunder are the high-profile rulings of the European Court of Justice in the Komstroy and PL Holdings cases, as well as the judgments granting or denying enforcement actions in national courts in Europe and the U.S. in cases such as Micula, Infrared, and NextEra, among others.
Most significant to note is that even when the jurisdictional issues arising out of intra-EU cases fade over time, with the termination of intra-EU BITs and the weakening of the Energy Charter Treaty, opportunities for serious conflict will abound. To be reckoned with going forward are substantive conflicts as well, such as when compliance with EU law demands is invoked as a defense to otherwise valid claims against EU Member States, not only in investor-State arbitration, but more broadly in commercial disputes as well
CCSI Submission to the Special Rapporteur on Human Rights and the Environment: Investor-State Dispute Settlement (ISDS) Mechanisms and the Right To a Clean, Healthy, and Sustainable Environment
Get PDFCCSI Submission to the Special Rapporteur on Human Rights and the Environment on investor-state dispute settlement (ISDS) mechanisms and the right to a clean, healthy, and sustainable environment, submitted in June 2023
Opposition to Renewable Energy Facilities in the United States: May 2023 Edition
Get PDFAchieving lower carbon emissions in the United States will require developing a very large number of wind, solar, and other renewable energy facilities, as well as associated storage, distribution, and transmission, at an unprecedented scale and pace. Although host community members are often enthusiastic about the economic and environmental benefits of renewable energy facilities, local opposition often arises. This report updates and considerably expands two previous Sabin Center reports, published in September 2021 and March 2022, and documents local and state restrictions against, and opposition to, siting renewable energy projects for the period from 1995 to May 2023. Importantly, the authors do not make normative judgments as to the legal merits of individual cases or the policy preferences reflected in local opponents’ advocacy, nor as to where any one facility should or should not be sited. Bracketing any such judgment, the report demonstrates that local opposition to renewable energy facilities is widespread and growing, and represents a potentially significant impediment to achievement of climate goals.
In nearly every state, local governments have enacted laws and regulations to block or restrict renewable energy facilities, and/or local opposition has resulted in the delay or cancelation of particular projects. In this edition, the authors found at least 228 local restrictions across 35 states, in addition to 9 state-level restrictions, that are so burdensome that they could have the effect of blocking a project. The authors also found 293 renewable energy projects that have encountered significant opposition in 45 states.
The 228 local restrictions in this report include 59 newly adopted restrictions (adopted post-March 2022) and 58 previously overlooked restrictions (adopted pre-March 2022). The 9 state-level restrictions in this report include 1 newly adopted restriction (post-March 2022) and 3 previously overlooked restrictions (pre-March 2022). The 293 contested projects in this report include 82 new controversies (post-March 2022) and 24 previously overlooked controversies (pre-March 2022). These top-line figures, however, are only indicative. While the report includes all of the restrictions and controversies that we have determined meet our criteria, it does not purport to be exhaustive
Life, Liberty, and Data Privacy: The Global CLOUD, the Criminally Accused, and Executive versus Judicial Compulsory Process Powers
Get PDFU.S. policymakers’ responses to a wave of global data privacy laws are creating a deep structural unfairness in the criminal legal system. In an era of cloud computing, when data about communications and activities occurring anywhere in the world can be stored on servers located anywhere else, access to such data can make the difference between convictions and acquittals. At the same time, new global data privacy laws risk cutting off cross-border access to digital evidence in criminal investigations. Recognizing the threat to law enforcement interests, U.S. policymakers enacted the CLOUD Act of 2018 to create special procedures for law enforcement to circumvent foreign data privacy laws and access cross-border evidence anyway. Yet no one is creating similar procedures for criminal defense investigators.
In the U.S. adversarial legal system, criminal defense counsel are the sole actors formally tasked with investigating evidence of innocence. While the prosecution team must disclose exculpatory evidence that it happens to possess, law enforcement officers have no formal duty to actively seek out such evidence. As a result, selectively advantaging law enforcement investigations of guilt without creating parallel procedures for the defense means selectively suppressing evidence of innocence. This asymmetry gets privacy backwards. Privacy protections ostensibly meant to constrain government power may accomplish that goal in an absolute sense, but relatively speaking, they specially empower the government as compared to the defense. They thereby undermine the criminal defense process that is itself supposed to guard against government abuse.
This Article exposes this structural anti-defendant bias in U.S. responses to global data privacy laws. It then uses this problem as a case study to examine the constitutionality of a more general category of laws: privacy laws that disadvantage criminal defense investigations as compared to their law enforcement counterparts. It diagnoses why constitutional challenges to these types of laws have failed in the past and proposes a novel definitional argument to strengthen these challenges moving forward. Ironically, the very CLOUD Act procedures that exclude defense investigators also hold a key to advocating on their behalf
Environmental Law Before the Courts: A US-EU Narrative
No full textThis book sheds light on the latest trends in environmental law by analyzing some of the main sectors of law, including administrative law, constitutional law, EU law, US Law, and human rights law. It explores the evolution of these sectors before courts and tribunals from a US-EU perspective and from the perspectives of some of the foremost academics and justices from the major jurisdictions.
Supranational and national courts, both in Europe and in the US, have delivered significant environmental judgements in recent years. The corresponding case law reflects how, in many jurisdictions, environmental and climate litigation continues to expand exponentially as a tool to strengthen environmental protection, whether by pushing national governments to be more ambitious or by enforcing existing statutes and regulations.
Courts, particularly after the Paris Agreement, are increasingly seeking their own role as an important player in multilevel environmental governance. Courts in both the US and EU are at the forefront of this process and their role in shaping environmental rule of law will be fundamental in the near future.https://scholarship.law.columbia.edu/books/1393/thumbnail.jp
\u3cem\u3eRes Judicata\u3c/em\u3e in International Arbitration
Get PDFRes judicata, or claim preclusion, is no less important a matter in international arbitration than in national court litigation. Nothing less than the finality of an adjudication is at stake. In principle, a tribunal should decline to adjudicate a dispute if it has already been adjudicated either in a prior judgment or award. Apart from all the disadvantages of duplicative proceedings, a tribunal’s failure to treat a prior adjudication as preclusive made lead to set aside of its award. Even if an adjudication is final and binding, or in the case of an award entitled to recognition, certain so-called “identities” must be established, whether identity of party, identity of claim, or identity of object, or all of the above. But how are they to be defined? Herein lies the difficulty for tribunals. The requirements of res judicata are a matter of forum law and, unlike a national court, an arbitral tribunal has no forum law and derives little if any guidance from the parties’ agreements, arbitration laws or institutional rules. Tribunals have a choice-of-law challenge, their best options being the res judicata norms of one body of national law or another and an international standard if one can be ascertained