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The Perils and Promise of Direct Democracy: Labour Ballot Initiatives in the United States
No full textIn September 2019, California legislators approved a bill, known as AB5, that extended employee status to many workers previously classified as independent contractors, including workers at the rideshare platforms Uber and Lyft. The law aimed to reshape the platform economy — also known as the ‘gig,’ or ‘on-demand’ economy — to protect exploited workers and make work less precarious. Just over a year later, however, in November 2020, voters repealed significant parts of the bill through a state-wide ballot initiative, stripping ride-share drivers and other platform workers of employee status and limiting the ability of the California legislature to protect such workers in the future.
This Essay uses the California fight over platform workers as a jumping off point to explore the role of the ballot initiative and referendum in United States labour policy. Part I details the California experience, including the extraordinary amount of money and aggressive communication tactics that platform companies employed to advance the initiative. The next two Parts put the California experience in legal and historical context. Part II surveys the law of ballot initiatives in the United States as well as their progressive origins and aspirations. Part III explores what kinds of labour ballot initiatives have been pursued in the past across the United States, and whether they have prevailed, focusing on the last fifteen years. Part IV augments the existing scholarly literature with the labour experience to analyze under what circumstances state-level initiatives are pro-worker; when and why are they captured by business interests; and, more generally, to what extent are they riddled with the same pathologies that affect the rest of our democracy.
Ultimately, the experience in California and with labour initiatives in the United States more broadly suggests that, under certain conditions, ballot initiatives can be an important pro-worker and pro-democratic tool. However, when wealthy corporate interests are united on one side of a ballot measure as is often the case for labour initiatives, when a measure is complicated and difficult to decipher, and when business interests have particular control over communication or have the ability to exercise coercive economic pressure over voters, business can capture the process, notwithstanding voters’ previously expressed preferences and interests
New York\u27s Green Amendment: The First Decisions
Get PDFOn Nov. 2, 2021, the voters of New York by a margin of more than 2-1 approved an environmental rights amendment to the Bill of Rights in the New York State Constitution. Article I Section 19 reads in its entirety: “Environmental Rights. Each person shall have a right to clean air and water, and a healthful environment.” In the little more than a year since then, one of the great questions in New York environmental law has been — what does this mean? It looks significant, but just how much? That is left to the courts to decide. We now have two decisions, both of which are under appeal, and four pending cases that have not been decided. This column discusses the emerging jurisprudence under what has been called New York’s Green Amendment
Beyond Unprecedented S3 Ep0: Reintroducing Beyond Unprecedented
Get PDFThe co-hosts kick off season three of Beyond Unprecedented with the Financial Times Sujeet Indap to preview the season and map out key developments affecting workers, investors, companies, and communities.https://scholarship.law.columbia.edu/beyond_unprecedented_3/1000/thumbnail.jp
Beyond Unprecedented S3 Ep1: Crypto in Crisis
Get PDFWith a growing crisis in the crypto financial system, Bloomberg Opinion columnist Matt Levine discusses key challenges and opportunities facing the crypto industry, the relevant regulatory framework, and what lies ahead for the space.https://scholarship.law.columbia.edu/beyond_unprecedented_3/1001/thumbnail.jp
CRT2 S1E4
No full textPhoto of Darren Hutchinson, Professor of Law and John Lewis Chair for Civil Rights and Social Justice at Emory University School of Law.https://scholarship.law.columbia.edu/crt2_podcast/1012/thumbnail.jp
Payment Systems and Other Financial Transactions: Cases, Materials, and Problems
No full textWritten by Ronald J. Mann, one of the country’s leading Commercial Law scholars, Payment Systems and Other Financial Transactions continues to deliver clear, detailed practical explanations of how payment systems actually work. Using a systems approach, the text and problems focus on rules that are applied in practice. Easily adapted to any 50-minute, 75-minute, or two-hour long class, this casebook is suitable for use in courses on Payment Systems, Negotiable Instruments, or Commercial Paper.https://scholarship.law.columbia.edu/books/1124/thumbnail.jp
Copyright: Cases and Materials
No full textWith stimulating questions and discussion problems, comprehensive notes, and teachable and well-edited cases as its hallmarks, this is the authoritative law school casebook for the study of Copyright Law. The book presents up-to-date materials dealing both with new technologies and with the more traditional issues in the field.
Topics that receive particular attention include: The copyrightability of AI-generated or -assisted works; The copyrightability of works having a functional character, including compilations, computer programs, and the problem of applied art; The application of the rights of distribution and public performance and display to the digital environment; New developments in the fair use doctrine, including the Supreme Court’s 2022 decision in Google v. Oracle, and its 2023 decision in Andy Warhol Foundation v. Goldsmith; The caselaw on the limited liability of internet service providers; The Digital Millennium Copyright Act\u27s provisions on technological protection measures and copyright management information are also covered, through well-selected cases and analysis of successive Copyright Office Rulemakings.
Materials on derivative works, copyright registration, copyright duration, termination of transfers, and fair use have been substantially reorganized to take account of new developments and to present these complicated topics to students in a more easily understandable manner.
There are also more photographs illustrating current cases dealing with originality and infringement. The casebook continues its position as the outstanding book in the field — comprehensive and thorough, and stimulating and enjoyable for both teacher and students.https://scholarship.law.columbia.edu/books/1087/thumbnail.jp
Nondelegation Blues
Get PDFThe nondelegation doctrine is in crisis. For approximately a century, it has been the Supreme Court’s answer to questions about transfers of legislative power. But as became evident in Gundy v. United States, those answers are wearing thin. So, it is time for a new approach.
This Foreword goes beyond existing scholarship in showing how underlying principles, framing assumptions, constitutional text, and contemporary analysis are all aligned in barring transfers of power among the branches of government. Rarely in constitutional law does a conclusion about a highly contested question rest on such a powerful combination.
At the same time, the Foreword shows the refinement of the Constitution’s approach. The Constitution’s sophistication has not been much appreciated in the scholarly literature. It will be seen, however, that the Constitution was anything but crude in barring transfers of powers. For example, it adopted the separation of powers not in an absolute way but as a default principle. Although it precluded the transfer of legislative power, it left much room for executive rulemaking. Although its powers were externally exclusive, they were not always exclusive internally — that is, some of them could be subdelegated within the branches of government — and even externally, they permitted the exercise of much nonexclusive authority. Wherever one stands on delegation, these important distinctions qualify the larger point about the location of legislative power.
Not narrowly an originalist or technical question, the problem here involves visceral social and political concerns. This Foreword therefore completes its historical analysis with contemporary considerations, showing that congressional transfers of legislative power rest on a legacy of prejudice and that, even today, they are mechanisms for discrimination, disenfranchisement, decision-making irrationality, and political conflict
The New Orleans Transformation: Foster Care as a Rare, Time-Limited Intervention
Get PDFThis Article offers an initial evaluation of one reformed child protection system — New Orleans, Louisiana — and describes how a system that dramatically reduces the number of children in foster care might look. This system shows how a major metropolitan area can shrink its daily population of children in foster care to the low double digits, which would correspond to a reduction of the national daily foster care population by about 360,000. This reduction was mostly due to sending children home — usually to the homes from which they were removed — within days or weeks of removal, raising questions about the necessity of the original removal. This reduction occurred without harming children’s safety, suggesting that keeping children in state custody is not necessary to keep them safe. Moreover, New Orleans data reveal a particularly large reduction in the time Black children are separated from their families, an increase in the number of children living with kinship caregivers compared to strangers, and a near elimination of congregate care placements and termination of parental rights. All of these are positive outcomes, which demand widespread attention in the field.
Several features of the reformed New Orleans system stand out. First, in the period before any adjudications (when most foster care exits occurred), the family court took on a dispute resolution role, focused on ensuring cases were prepared for trial or moving toward settlement. This contrasts with the family court’s historically more common and more interventionist problem-solving role. Second, the court insisted on compliance with pretrial procedures. Third, legal representation, especially of parents and the agency, was vigorous and adversarial.
Some notes of caution are warranted. A significant minority of children leave foster care in New Orleans via a quick permanent change of custody to a relative, which ends the court’s involvement in the family’s life but sacrifices some potential benefits of a longer case, especially a parent’s opportunity to engage in rehabilitative services and more easily seek reunification
Additional Comments on Preliminary Draft 9
Get PDFI am adding to the comments submitted by Profs. Balganesh, Menell and myself a list of points in PD9 that I believe require correction or clarification. These comments do not include Chapters 8, 10 or 11