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Political Equality, Gender, and Democratic Legitimation in \u3cem\u3eDobbs\u3c/em\u3e
Get PDFThis Article examines the U.S. Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization, demonstrating how the Court deploys new arguments about women’s political equality — alongside long-standing arguments about federalism and judicial minimalism — to legitimate the overruling of Roe v. Wade. In contending that abortion rights are better determined by legislatures, the Dobbs Court advances a thin conceptual account of democracy and political equality that ignores a range of anti-democratic features of the political process that shape abortion policy — such as partisan politics and gerrymandering — as well the absence of women in the legislative process. Key to the Court’s ruling is its claim that women are “not without” electoral and political power, citing data on women’s equal or higher rates of voting in Mississippi. The Court’s conceptual account of political equality centers on voting while ignoring other modes of political participation as well as structural inequalities and barriers to women’s equal participation as candidates and legislators. When considering political candidacy and representation as measures of participation, a significant dimension of inequality between men and women emerges. Our investigation of the full dimensions of political inequality and the effects of anti-democratic distortions has important implications for those who wish to bring equal protection and other legal challenges to reproductive restrictions at the state level, and for ensuring inclusive and legitimate policymaking on reproductive rights and beyond. As scholars and commentators debate the proper role of the U.S. Supreme Court in democracy and argue for shifting rights determination to the legislative arena, an examination of the structure of the political process and whether legislatures are inclusive is crucial
Digital Privacy for Reproductive Choice in the Post-\u3cem\u3eRoe\u3c/em\u3e Era
Get PDFThe overruling of Roe v. Wade has unleashed a torrent of regulatory and punitive activity restricting previously lawful reproductive options. But the turn to the expansive criminal law and new schemes of civil liability creates novel concerns, quite distinct from the pre-Roe landscape a half-century ago. Reproductive choice, and its nemesis, turn upon information. For pregnant people, deciding on a choice of medical care entails a search for advice and services. Information is at a premium for them. Meanwhile, efforts to regulate abortion began with clinic closings. But they will quickly extend to civil actions and criminal indictments of patients, providers, and those who facilitate abortions. Like the pregnant themselves, criminal and civil enforcers depend on information. And in the contemporary context, the informational landscape, and hence access to counseling and services such as medication abortion, is largely mediated through digital forms of communication. In an era when most people use search engines or social media to access information, the digital architecture and data retention policies of those platforms will determine not only whether the pregnant can access medically accurate advice but also whether the act of seeking health information places them in legal peril.
This Article offers an in-depth analysis of the core legal issues concerning abortion-related digital privacy after the end of Roe. It demonstrates first that digital privacy for pregnant persons in the United States has suddenly become a tremendously fraught and complex question. It then maps the treacherous social, legal, and economic terrain upon which firms, individuals, and states will make privacy-related decisions. Building on this political economy, we develop a set of moral and economic arguments to the effect that digital firms should maximize digital privacy for pregnant persons within the scope of the law and should actively resist states’ efforts to conscript them into a war on reproductive choice. We then lay out precise, tangible steps that firms should take to enact this active resistance. We explore here in particular a range of powerful yet legal options for firms to refuse cooperation with restriction-focused criminal and civil investigations. Finally, we present an original, concrete and immediately actionable proposal for federal and state legislative intervention: a statutory evidentiary privilege to shield abortion-relevant data from warrants, subpoenas, court orders, and judicial proceedings aimed at limiting the availability of reproductive care
What is at Stake if Antitrust Regulation Fails?
Get PDFMomentum for regulating Big Tech is growing across the world. The European Union has been leading this fight for the past decade, frequently leveraging its antitrust laws, data protection laws, and other regulatory instruments to reclaim control over the industry. But the EU is no longer the lone crusader prepared to take on the tech giants. The Chinese government has initiated an unprecedented crackdown on its tech sector in the name of advancing common prosperity and ensuring that its tech giants do not overpower the state. The tide may now finally be turning even in the United States, where Congress is reassessing the need to re-write US antitrust laws, enact a federal privacy law, or revisit its absolutist stance on free speech online
Fifty Years of U.S. Copyright: Toward a Law of Authors\u27 Rights?
No full textIn honor of the 50th Anniversary of the American Intellectual Property Law Association Quarterly Journal, this Article explores developments in U.S. copyright law within that timeline. Fifty years would take us to 1972, but the signal event in U.S. copyright law during that period is the 1976 Copyright Act, which took effect in 1978. I will examine how that law marks a watershed in U.S. copyright, shifting us toward a law of authors’ rights more consonant with the international standards of the Berne Convention on the Protection of Literary and Artistic Property. That said, U.S. copyright law and international norms still maintain an asymptotic relationship: U.S. law might approach a goal of authorial primacy, but its lack of moral rights and the persistence of vesting employers and certain commissioning parties with authorship status under the “works made for hire” doctrine ensure that the two lines of authority will never converge. At a more fundamental level, however, authors and authorship underpin the 1976 Act to a greater extent than its predecessors, starting with the statutory setting of creation as the point of attachment of federal copyright protection (rather than publication with proper notice of copyright). This Article will consider the respects in which the 1976 Act and its implementation, through to the recent interpretations of the Act to exclude non-human authorship, center copyright on creators. Part I addresses the relationship between creativity and formalities; Part II reviews copyright ownership; Part III examines the scope of protection of authors’ economic and moral rights; and Part IV addresses secondary authorship and the fair use defense. I conclude with some reflections on “authorless works” and why they cannot sustain copyrights under the 1976 Act
CRT2 S1E1
No full textPhoto of Harmony Hope, Advocate and Senior Producer and Host of WBAI Radio’s On the Count.https://scholarship.law.columbia.edu/crt2_podcast/1003/thumbnail.jp
CRT2 S1E8
No full textPhoto of Maboula Soumahoro, Associate Professor at the University of Tours.https://scholarship.law.columbia.edu/crt2_podcast/1017/thumbnail.jp
Roadmap to Zero-Carbon Electrification of Africa by 2050: The Green Energy Transition and the Role of the Natural Resource Sector (Minerals, Fossil Fuels, and Land)
Get PDFAll Africans — whether living in urban or rural areas — need access to affordable, clean, efficient, reliable, climate-proof, and renewable energy for both residential and productive uses to achieve sustainable development objectives. At the same time, the world is moving to decarbonization by 2050, and Africa will be part of this global trend. Prospective oil and gas projects in Africa will no longer be pursued as overseas markets, and financing will shrink. At the same time, Africa’s vast renewable energy potential, in the solar and hydropower sectors especially, will engage increasingly bankable and highly attractive investments. In net terms, Africa has a huge amount to gain from a decisive build-up of renewable energy and the capacity to produce the minerals, hardware, and software of the new zero-carbon energy economy.
With support from the African Natural Resources Centre of the African Development Bank (AfDB), and under the guidance of Prof. Jeffrey Sachs, the CCSI team prepared a report setting out a comprehensive and actionable roadmap for Africa’s zero-carbon energy transformation by 2050, with most advances achieved by 2030.
Starting from a simple and transparent model of the annual investment volumes needed to provide continent-wide access to electricity based on renewable sources, the report addresses various imperatives and challenges regarding Africa’s energy planning and financing and outlines recommendations for immediate implementation of the strategy from 2022.
CCSI is grateful for the AfDB’s support. The views in the CCSI paper do not necessarily reflect the views of any other organization, including the AfDB
Evaluating Climate Risk in NEPA Reviews: Current Practices and Recommendations for Reform
Get PDFIn recent years, policymakers, practitioners, and scholars have increasingly considered how climate change should factor into existing environmental review obligations, including review of U.S. federal agency actions under the 1969 National Environmental Policy Act (“NEPA”). Attention thus far has focused primarily on the critical question of how to account for an action’s contribution to climate change via direct, indirect, or cumulative greenhouse gas emissions. However, less focus has been given to the equally critical question of how actions will be affected by, and can prepare for, the impacts of climate change. This paper combines an extensive review of previously conducted Environmental Impact Statements (“EIS”) with an examination of the legal framework, current practices, and next steps for integrating that latter category of climate effects – what we term “climate impact analysis” – into NEPA reviews.
The paper concludes that, in order for federal agencies to fulfill their legal obligations under NEPA, the EISs they prepare must contain a comprehensive climate impact analysis. Drawing on previously identified best practices, we define three key requirements for climate impact analysis, namely that the analysis be (1) holistic, (2) specific, and (3) actionable. To determine whether federal agencies are conducting holistic, specific, and actionable climate impact analysis as required by NEPA, we reviewed all final EISs issued by federal agencies in connection with onshore energy projects in the five years from 2016 through 2020. We hypothesized that, because energy infrastructure is highly sensitive to climate change impacts (i.e., due to its place-based nature and condition-sensitive technology), energy-focused EISs should contain particularly high-quality climate impact analyses. Our review found the opposite: None of the surveyed EISs contained sufficiently holistic, specific, and actionable climate impact analysis to inform agency decision-makers.
Given the clear relevance of climate change to the requirements of NEPA, we recommend that the Council on Environmental Quality and other federal agencies take immediate steps to ensure sufficiently holistic, specific, and actionable climate impact analysis is conducted in environmental reviews
Discriminatory Taint
Get PDFThe truism that history matters can hide complexities. Consider the idea of problematic policy lineages. When may we call a policy the progeny of an earlier, discriminatory policy, especially if the policies diverge in design and designer? Does such a relationship condemn the later policy for all times and purposes, or can a later decisionmaker escape the past? It is an old problem, but its resolution hardly seems impending. Just recently, Supreme Court cases have confronted this fact pattern across subject matters as diverse as entry restrictions, nonunanimous juries, and redistricting, among others. Majority opinions seem unsure whether or why “discriminatory predecessors” matter, and individual Justices who agree that they do squabble over methodology.
One could answer these questions by banish ing them. Thus, some would simply treat any nonidentical policy predecessor as minimally relevant, and only relevant insofar as it suggests present-day bad intent. Anything else, they suggest, risks an unmoored original sin jurisprudence, with courts claiming to know guilt when they see it. Simple is not always better, however, especially if it risks eliding information material to a policy’s validity. But again: how do we divine materiality?
Better approaches are possible. While our law broadly appreciates that continuity matters to legal meaning and responsibility, constitutional law has undertheorized it. Deploying continuity here helps conceptualize, and craft guideposts for, “discriminatory taint”: an objectively ascertainable relationship between an earlier policy and a later, similar policy. Thus defined, taint can impugn some policies that might otherwise have passed constitutional muster. Yet it also facilitates realistic approaches – judicial and nonjudicial - to distinguishing genuine purging of taint from its laundering. And it supplements debates on the nature of wrongful discrimination by underscoring how continuity can help identify persistent constitutional problems even absent subjective bad intent
The Banker Removal Power
Get PDFThe Federal Reserve (“the Fed”) can remove bankers from office if they violate the law, engage in unsafe or unsound practices, or breach their fiduciary duties. The Fed, however, has used this power so rarely that few even realize it exists. Although major U.S. banks have admitted to repeated and flagrant lawbreaking in recent years, the Fed has never removed a senior executive from one of these institutions.
This Article offers the first comprehensive account of the banker removal power. It makes four contributions. First, drawing on a range of primary sources, it recovers the power’s statutory foundations, showing that Congress created the authority to better align the interests of senior bankers and the public. Second, using a novel dataset obtained through Freedom of Information Act requests, it maps the actual practice of banker removal – who is removed, how often removal occurs, and for what reasons. It reveals that the Fed now uses the removal power mostly to prevent already-terminated, low-level employees from working at other banks, even though Congress never intended for the power to be used primarily in this way. Third, harnessing corporate law theory, the Article defends the legislative design. It argues that removal of senior bank executives for unsound management practices is a critical component of effective bank supervision, filling gaps left by regulatory rules and traditional corporate governance measures. Finally, the Article concludes by assessing obstacles to the use of the removal power against bank leadership and suggesting policy responses