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Our Kind of People 1
No full texthttps://scholarship.law.columbia.edu/ross_smith_okop/1000/thumbnail.jp
Getting to Death: Race and the Paths of Capital Cases after \u3cem\u3eFurman\u3c/em\u3e
Get PDFDecades of research on the administration of the death penalty have recognized the persistent arbitrariness in its implementation and the racial inequality in the selection of defendants and cases for capital punishment. This Article provides new insights into the combined effects of these two constitutional challenges. We show how these features of post-Furman capital punishment operate at each stage of adjudication, from charging death-eligible cases to plea negotiations to the selection of eligible cases for execution and ultimately to the execution itself, and how their effects combine to sustain the constitutional violations first identified 50 years ago in Furman. Analyzing a dataset of 2,328 first-degree murder convictions in Georgia from 1995–2004 that produced 1,317 death eligible cases, we show that two features of these cases combine to produce a small group of persons facing execution: victim race and gender, and a set of case-specific features that are often correlated with race. We also show that these features explain which cases progress from the initial stages of charging to a death sentence, and which are removed from death eligibility at each stage through plea negotiations. Consistent with decades of death penalty research, we also show the special focus of prosecution on cases where Black defendants murder white victims. The evidence in the Georgia records suggests a regime marred less by overbreadth in its statute than capriciousness and randomness in the decision to seek death and to seek it in a racially disparate manner. These two dimensions of capital case adjudication combine to sustain the twin failures that produce the fatal lottery that is the death penalty
The \u3cem\u3eInsular Cases\u3c/em\u3e Run Amok: Against Constitutional Exceptionalism in the Territories
Get PDFThe Insular Cases have been enjoying an improbable — and unfortunate — renaissance. Decided at the height of what has been called the “imperialist” period in U.S. history, this series of Supreme Court decisions handed down in the early twentieth century infamously held that the former Spanish colonies annexed by the United States in 1898 — Puerto Rico, the Philippines, and Guam — “belong[ed] to, but [were] not a part of, the United States.” What exactly this meant has been the subject of considerable debate even as those decisions have received unanimous condemnation. According to the standard account, the Insular Cases held that the “entire” Constitution applies within the United States (defined as the states, the District of Columbia, and the so-called “incorporated” territories) while only its “fundamental” limitations apply in what came to be known as the “unincorporated” territories (today, Puerto Rico, Guam, the U.S. Virgin Islands, the Northern Mariana Islands, and American Samoa). Scholars unanimously agree that the Insular Cases gave the Court’s sanction to U.S. colonial rule over the unincorporated territories — and that the reason for it was racism. Yet courts and scholars have recently sought to hoist the Insular Cases on their own racist petard — by “repurposing” them to defuse constitutional objections to certain distinctive cultural practices in the unincorporated territories. Adopting the standard account of the Insular Cases, according to which they created a nearly extraconstitutional zone, proponents of repurposing argue that the relative freedom from constitutional constraints that government action enjoys in the unincorporated territories can and should be exploited now to vindicate their peoples’ right to cultural self-preservation. This Article disagrees. Although I share the view that the Constitution should not ride roughshod over the cultural practices of the people of the unincorporated territories, I do not agree that the Constitution necessarily must bend to any such practices it finds there or that the Insular Cases present a legitimate — let alone desirable — doctrinal vehicle for preserving such practices. Instead, constitutional doctrines available outside of the Insular Cases present the most promising — and the only legitimate — doctrinal means for making the constitutional case in favor of cultural accommodation. Against the repurposing project, I argue that the Insular Cases gave rise to nothing less than a crisis of political legitimacy in the unincorporated territories, and that no amount of repurposing, no matter how well-intentioned — or even successful — can change that fact. On the contrary: repurposing the Insular Cases will prolong the crisis. They should be overruled
Social Media, Freedom of Speech, and the Future of our Democracy
No full textOne of the most fiercely debated issues of this era is what to do about bad speech-hate speech, disinformation and propaganda campaigns, and incitement of violence-on the internet, and in particular speech on social media platforms such as Facebook and Twitter. In Social Media, Freedom of Speech, and the Future of our Democracy, Lee C. Bollinger and Geoffrey R. Stone have gathered an eminent cast of contributors – including Hillary Clinton, Amy Klobuchar, Sheldon Whitehouse, Newt Minow, Cass Sunstein, Jack Balkin, Emily Bazelon, and others – to explore the various dimensions of this problem in the American context. They stress how difficult it is to develop remedies given that some of these forms of bad speech are ordinarily protected by the First Amendment. Bollinger and Stone argue that it is important to remember that the last time we encountered major new communications technology-television and radio-we established a federal agency to provide oversight and to issue regulations to protect and promote the public interest. Featuring a variety of perspectives from some of America\u27s leading experts on this hotly contested issue, this volume offers new insights for the future of free speech in the social media era.https://scholarship.law.columbia.edu/books/1344/thumbnail.jp
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No full textPhoto of Mark F. Pomerantz, attorney and member of the New York law firm Paul, Weiss, Rifkind, Wharton & Garrison.https://scholarship.law.columbia.edu/cutting_edge_podcast/1002/thumbnail.jp
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No full textPhoto of Sneha Pandya ’21.https://scholarship.law.columbia.edu/through_the_gale_podcast/1004/thumbnail.jp
International Copyright and Neighbouring Rights: The Berne Convention and Beyond
No full textThis comprehensive volume examines the international framework concerned with the protection of copyright and neighbouring rights. The focal point of this commentary is the Berne Convention for the Protection of Literary and Artistic Works 1886, which was last revised in 1971, but the treatment extends beyond to the related conventions that have grown out of, or are based on, Berne. These include; the WIPO Copyright Treaty 1996, the Rome Convention for the Protection of Phonogram Producers, Performers and Broadcasting Organizations 1961, the WIPO Performances and Phonograms Treaty 1996, and the 1994 Trade-Related Intellectual Property Rights Agreement (TRIPS Agreement) (an annexed agreement to the World Trade Organization). This edition also extends to conventions introduced since the publication of the previous edition, such as the Beijing Treaty on the Protection of Audiovisual Performances 2012, and the Marrakesh Treaty to Facilitate Access for Blind and Visually Impaired Readers 2013.
The analysis in the commentary is thematic and grounded in the history and development of each of the treaties considered. While its primary focus is upon the way in which the obligations contained in these public law instruments are to be interpretated and applied in domestic law, it also addresses in some detail the private international law aspects of the protection of works and neighbouring rights.https://scholarship.law.columbia.edu/books/1095/thumbnail.jp
The Visibility Trap
Get PDFVice Patrol offers a novel history of the visibility trap. It integrates interventions in legal history, history of sexuality, and queer theory with remarkable ease. Lvovsky brings new insight to a question that has puzzled scholars across several fields: Why and how does cultural representation lead to increased state repression? Blending impressive archival research with sophisticated theoretical analysis, Lvovsky follows cultural knowledge into the legal system to offer a fresh diagnosis of the problem and how it develops. In her discovery of “epistemic gaps,” she uncovers a key mechanism of the visibility trap. Disagreements between the police and the courts, not internal consensus about the purpose and object of regulation, enable legal regimes to “maintain and even expand their power over policed groups.” On this account, epistemic gaps are the missing piece to understanding how the visibility trap actually works. Part I of this Book Review draws out the book’s primary arguments to elaborate this theory, offering additional context for non-specialists and pressing on a few of the claims. Part I also reveals a latent argument in Vice Patrol about visibility itself, showing how Lvovsky brilliantly disentangles the forms of cultural salience, stereotype, and self-representation that often fly under the banner of “visibility.”
In Part II, the Review tests Lvovsky’s visibility theory against contemporary transgender visibility politics. Reading antitransgender policing and transgender civil rights struggles through Vice Patrol gives us a new way to understand how regulated people can harness knowledge about their communities to influence its path through legal institutions. Recognizing the limits of visibility, Vice Patrol suggests that strategic unintelligibility can be an important tool to fight repression
Unlocking the Power of Reformers to Achieve Better Progress on Extractives Governance
Get PDFFocusing on supporting “reformers” - those with a genuine commitment to reforms - is a way of trying to start on auspicious footing by targeting those with an existing interest in seeing good governance of extractive industries take root. While providing resources to bolster the technical capacity of these actors will be a critical aspect of their prospects for success, another is helping them to more effectively interact with their political contexts. Indeed, for the potential of reformers to drive and sustain relevant policy and institutional changes to be realized, the incentive and power dynamics that can impede these actors must be better understood and more effectively addressed. CCSI has been carrying out research on some of the main political challenges facing actors within governments committed to advancing governance reforms for the extractive industries in their countries and developing ideas for how these might be addressed more effectively.
To read some of the highlights of this work, please see the think piece, Unlocking the Power of Reformers to Achieve Better Progress on Extractives Governance. Key findings are also summarized in this presentation
Reframing Global Biodiversity Protection after COVID-19: Is International Environmental Law up to the Task?
Get PDFIn an increasingly interdependent world, the climate and biodiversity crises are, more than ever, inextricably tied to human health and the transmission of infectious diseases. The 2020 Covid-19 pandemic has irrevocably shown us that the exploitation of wild species and deforestation increases and modifies the interface between people and wildlife, leading to a spillover of diseases from wildlife to people. From a legal perspective, the gaps in international environmental law have contributed to the lack of an effective international biodiversity policy. In light of the challenges brought by the pandemic, there is now an opportunity to rethink our existing legal framework: How could international environmental law better protect biodiversity to avert future pandemics