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Our Kind of People 3
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Our Kind of People 5
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The Essential Meaning of the Rule of Law
Get PDFWe have heard much in recent times about the rule of law. Everyone seems to be in favor of it. Everyone seems to think that those with whom they strongly disagree are violating it. Let me remind you of a few examples.
President Obama, frustrated by Congress’s failure to adopt immigration reform, stated at a cabinet meeting that he still had a “pen and a phone.” He proceeded to announce a policy called DACA, short for Deferred Action for Childhood Arrivals, which effectively adopted a type of amnesty for some 700,000 persons who had arrived in the country as children without legal authority. This was denounced by political opponents as “executive legislation” and a violation of the rule of law.
His successor, President Trump, accumulated a record of sorts for being charged with flaunting the rule of law. To cite just one episode, he demanded that Congress appropriate funds for construction of a wall along the border between Mexico and the U.S. When Congress enacted an appropriations bill that specifically excluded any such appropriation, Trump refused to sign it, triggering a 35-day shutdown of the government. Trump eventually relented, but instructed subordinates to scrounge for other pots of money to build the wall. One identified source was Section 8005 of the Defense Appropriations Act of 2019, which authorized the re-transfer of up to $4 billion in Defense Department “working capital funds” based on “unforeseen military requirements,” as long as transfer of the funds had not been “denied by the Congress.” The Sierra Club obtained an injunction against this use of these funds, which was hailed by leading Democrats as a vindication of the rule of law. A divided Supreme Court stayed the injunction, noting that the government had made a “sufficient showing” that the Sierra Club had “no cause of action to challenge compliance with Section 8005.” So construction of the wall was allowed to proceed, until the Biden Administration brought it to an end.
Not to be left behind, President Biden has also been condemned for lack of fidelity to the rule of law. As part of the federal response to the COVID pandemic, the Centers for Disease Control ordered a nationwide moratorium on evictions of tenants for nonpayment of rent. This was later ratified and extended for a short period of time by Congress. As the expiration of the moratorium approached, the CDC decided it could extend the moratorium without additional congressional authority, based on a 1944 statute that authorized it to issue orders for fumigation, pest extermination, and “other measures, as in [its] judgment may be necessary” to prevent “sources of dangerous infection to human beings.” When the Supreme Court, acting on a stay application, expressed skepticism about whether the statute authorized an eviction moratorium, the Biden Administration asked Congress to enact emergency legislation extending the moratorium. But when Congress failed to act, the CDC extended the moratorium anyway. Speaking to reporters, Biden admitted that the extension order was on shaky legal ground, but he said it was worth doing because “by the time it gets litigated, it will probably give some additional time.” This too was decried as a violation of the rule of law, as the Supreme Court effectively held when the issue returned on another stay application.
As these examples suggest, recent Presidents have become increasingly bold in taking action that has not been authorized by law or is at best only dubiously authorized by law. The examples also reveal that political opponents of the President have not been shy about condemning these actions as violating the rule of law. These and other episodes suggest that the idea of the rule of law is centrally concerned with the understanding that the executive must confine its actions to what is authorized by law and must abide by the limits prescribed by law
Twitter v. Musk: The Trial of the Century That Wasn\u27t
Get PDFThe months-long saga over Elon Musk\u27s on-again, off-again acquisition of Twitter provided considerable entertainment for lawyers and laypeople alike. But for those of us who teach business law, it also provided a unique (and in certain ways, vexing) opportunity to show real-time examples of the legal principles that are the grist for courses in contracts, corporations, corporate finance, and mergers and acquisitions.
Both of us found ourselves incorporating the saga into our classroom discussions, which in turn informed our own thinking about how the dynamic played out. Although we were both relatively active on social media (indeed on Twitter itself) as the saga unfolded, the final closing of the deal in late October has given us a chance to reflect on our own takeaways in hindsight
Trademark and Unfair Competition Law: Cases and Materials
No full textIn the three decades since the first edition, both the number of stand-alone trademarks courses offered in U.S. law schools and the quantity of trademark law scholarship have vastly expanded. The growth of the Internet has fundamentally challenged trademark law to adapt; each successive edition of the Casebook has reflected these challenges, both within the chapters on acquisition of trademarks and on their infringement, and in a chapter devoted to Domain Names. Over the last 30 years, First Amendment issues have also come increasingly to the fore. Recent editions have focused on expressive uses of marks and related defenses; the Seventh Edition continues and deepens that attention. As in prior editions, the Casebook begins with a Prelude case that captures many of the issues that will recur throughout the course. We then provide introductory case law and secondary material on the concepts and policies underlying trademark law, and incorporate trademark policy concerns throughout the book. We have continued to include in-depth coverage of important advanced topics in the second half of the Casebook. Thus, along with Domain Names, False Advertising and Remedies receive their own chapters.https://scholarship.law.columbia.edu/books/1086/thumbnail.jp
Evaluating Legal Needs
Get PDFThis article is the first to explore legal needs in the Rio Grande Valley of Texas – a region that is predominantly Latinx and has both rural and urban characteristics. There are few legal needs assessments of majority Latinx communities, and none that examine needs in areas that are also U.S. border communities. Access to justice studies often overlook this area of the U.S. and this segment of the population despite their unique qualities. Latinos are projected to constitute the largest ethnic group in the country by 2060, making it imperative that we study access to justice-related assets, needs, opportunities, and barriers that currently exist within majority-Latinx communities. Legal needs assessments are a first step to legal service innovation, public education campaigns, and legal reform. Such assessments will help us to effectively address access to justice concerns.
The piece also considers efforts to start a law school in the region and connects it to the importance of developing institutions of legal education in underserved communities. This article’s analysis centers on the experiences of Rio Grande Valley residents, through surveys, focus groups and oral history methodologies. It charts a course of study that can be followed in other regions to rethink the provision of legal services. Through its empirical and historic evaluation of legal needs, the article offers an example of how to capitalize on an area’s cultural and linguistic strengths to increase communities’ understanding of legal rights and responsibilities. It hopes to expand discussion on access to justice, legal innovation, and legal service investment in expanding majority Latinx communities within the U.S
Allocation of Climate-Related Risks in Investor–State Mining Contracts
Get PDFDomestic laws and regulations are the ideal legal instrument to regulate the mining sector’s contribution to climate change mitigation and adaptation. Even so, as a stop-gap-measure in the absence of a robust legal and regulatory framework, governments may consider updating model mining development agreements (MMDAs) or negotiating climate-related contractual provisions.
The CCSI paper Five Years After the Adoption of the Paris Agreement, Are Climate Change Considerations Reflected in Mining Contracts?, published in July 2021, explores whether governments are using, and how they can use, investor–state mining contracts to advance climate goals.
This companion piece expands the analysis, by examining risk allocation provisions that are commonly used or could be used in mining contracts and discussing how they should be drafted to clearly allocate the risks and impacts associated with the ever-worsening effects of climate change between states and mining companies
Removing Carbon Dioxide Through Ocean Fertilization: Legal Challenges and Opportunities
Get PDFCarbon dioxide removal (“CDR”) will be needed, alongside deep emissions cuts, to achieve global temperature goals. According to a 2022 report by the Intergovernmental Panel on Climate Change, to keep global average temperatures within 1.5°C above preindustrial levels, carbon dioxide and other greenhouse gas emissions must reach net-zero by mid-century. Scientists have proposed a number of land- and ocean-based CDR techniques. This paper focuses on ocean fertilization, which involves adding iron or other nutrients to the ocean to stimulate the growth of phytoplankton that uptake carbon dioxide and convert it into organic carbon. The hope is that the organic carbon will end up sequestered in the deep ocean when the phytoplankton die and sink.
Scientists have conducted a number of in-ocean fertilization experiments, which suggest that adding iron does stimulate phytoplankton blooms, leading to increased uptake of carbon dioxide. However, further study is needed to evaluate whether ocean fertilization leads to long-term carbon storage and evaluate its potential co-benefits and risks, including the potential for nutrient-diversion from other ocean areas.
This paper explores the application of existing international and domestic (U.S.) law to ocean fertilization research and deployment. There are currently no legally binding international treaties dealing specifically with ocean fertilization. However, in recent years, three international treaty bodies have taken initial steps to develop rules for ocean fertilization research and deployment. At the domestic level, the Marine Protection, Research, and Sanctuaries Act (“MPRSA”) regulates the discharge of material into ocean waters within twelve nautical miles of the U.S. coast and further offshore in some cases. Ocean fertilization projects are likely to require a permit from the U.S. Environmental Protection Agency under the MPRSA. Additional permitting and other legal requirements could apply to the mining and processing of iron and other materials for use in ocean fertilization
Exploring the Bedrock for Earth Jurisprudence
Get PDFThis article calls for a reassessment of our core beliefs on how we relate to the environment through a deep dive into the philosophical foundations of environmental protection. With this purpose, it shows how Earth-centered discourses have existed in human societies and civilizations for millennia. Different religious and philosophical underpinnings all share a view of humanity as an integral part of an organic whole, revering all living things. While recent developments in jurisprudence may appear novel, they are somewhat latent and emergent. Theories of land ethics, rights of nature, Earth-centered environmental ethics, wild law, and Earth jurisprudence all build on these philosophical crescendos and have proved influential at the international level. It is time to find new approaches to the law that rely on the value of nature. This article tells us the why and the how
Columbia Law School’s Center for Gender and Sexuality Law on Leaked Dobbs Opinion
Get PDFThe leaked Supreme Court opinion in Dobbs v. Jackson Women’s Health Organization, signals a major break with at least three generations of constitutional law. Should this opinion be officially issued by the Court, it will eliminate not only constitutional protections for abortion, but well-settled legal principles on which basic personal rights have rested for over 60 years