Global Health Research Center of Central Asia
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Conflicting Fundamental Rights Under the Indian Constitution: Analyzing the Supreme Court’s Doctrinal Gap
Get PDFThe Constitution of India recognizes a wide variety of fundamental rights: civil and political, socio-economic, and group rights. A conflict between these rights is a common occurrence. The Supreme Court of India’s method of resolving conflicts has been ad-hoc, nebulous, and vague. The Court rarely locates the conflict at a granular level and, on the rare occasion that it does, the decision lacks comprehensive reasoning. This paper attempts to demonstrate the doctrinal, structural, and reasoning gap in the Court’s jurisprudence. The paper does so by analyzing a subset of cases where the Court has adjudicated on conflicts between the right to life and dignity and the right to speech and assembly.
The paper starts by briefly describing two contrasting normative models of rights-adjudication: the ‘specification’ model and the ‘balancing’ model to set a benchmark for rights-conflict adjudication (Part II). Then, the paper explains the framework of fundamental rights in India and how these rights conflict (Part III). It points out the doctrinal inconsistency in the Court’s approach while adjudicating rights conflict and discusses the problems in the Court’s reasoning (Part IV). Thereafter, the paper examines the urgent need to resolve these issues (Part IV and Part V). Finally, in Part VI, the paper suggests a comprehensive analytical framework to narrowly locate the conflict of rights in the facts of the case and structure the rights-balancing exercise
Creating a Strong Legal Preference for Kinship Care
Get PDFOne new to our field would be forgiven for thinking that the law must favor placing foster children with kin rather than with strangers. After all, individuals and organizations from across the ideological spectrum endorse kinship care, government publications describe kinship care as “the preferred resource” for placing children who cannot live at home with a parent and, after steady increases over multiple decades, authorities now place more than one-third of all foster children with kin. And decades of evidence establish that kinship care is generally more stable and serves children’s health and well-being better than living with strangers, a point so well accepted that it needs no further elaboration here.
So, one should expect the law to strongly favor kinship care over stranger foster care. But it largely does not. Instead, the law grants child protective services (CPS) agencies wide discretion to determine whether to place foster children with kinship caregivers. As a result, any meaningful preference for kinship care over stranger foster care varies significantly by jurisdiction. Putting any preference into practice is subject to the whims of CPS agencies and the judgment of individual caseworkers and family court judges regarding specific kinship caregivers
CRT2 S1 Ep3: Movement Lawyering in Law School
Get PDFIn this episode of CRT2, we discuss movement lawyering and how its principles can be incorporated in legal education. Movement lawyering, also known as community lawyering, is a non-traditional approach to social justice lawyering that recognizes the limitations of relying on the law to bring about social change. Drawing from Critical Race Theory, movement lawyers acknowledge the role law has played in creating and perpetuating conditions of oppression. Considering this, movement lawyers learn from and work with communities and individuals impacted by these oppressive systems, instead of deciding the agenda for reform.https://scholarship.law.columbia.edu/crt2/1004/thumbnail.jp
Scaling Investment in Renewable Energy: Roadblocks and Drivers – Executive Summary
Get PDFThe zero-carbon energy transition is the solution to the 2022 energy crisis and a fundamental part of the solution to the global climate crisis. Yet, there are relatively low levels of investment in renewable energy in developing countries, hindering their achievement of the Sustainable Development Goals (SDGs) and contribution to the Paris Agreement goals.
In 2021, the Asia–Pacific region (excluding China) accounted for less than 8% of investments in energy transition technologies, Latin America and the Caribbean for less than 4%, and Africa and the Middle East for less than 2%. Annual investment in zero-carbon energy in developing economies other than China has stagnated since the Paris Agreement was signed in 2015. To put the world on track to reach net-zero emissions by 2050, annual capital spending on zero-carbon energy in developing countries must increase by more than seven times, to more than USD 1 trillion, by the end of the 2020s
Lawyering Paradoxes: Making Meaning of the Contradictions
Get PDFEffective lawyering requires the ability to manage contradictory yet interdependent practices. In their role as traditionally understood, lawyers must fight, judge, debate, minimize risk, and advance clients’ interests. Yet increasingly, lawyers must ALSO collaborate, build trust, innovate, enable effective risk-taking, and hold clients accountable for adhering to societal values. Law students and lawyers alike struggle, often unproductively, to reconcile these tensions. Law schools often address them as a dilemma requiring a choice or overlook the contradictions that interfere with their integration.
This Article argues instead that these seemingly contradictory practices can be brought together through the theory and action of paradox. After identifying the features of these two practices of lawyering – called here legality and proactive lawyering – the Article sets out five lawyering paradoxes that stem from the opposing yet interdependent features of legalistic and proactive lawyering: paradoxes of thought and discourse; relationship; motivation, mindset, and justice. Next, the Article shows the consequences of legal education’s tendency to avoid, sidestep, or downplay these paradoxes. Finally, drawing on existing research and experiences of innovators, the Article identifies three strategies that can enable students and lawyers to construct a dynamic tension between legality and proactive lawyering, and in the process build the potential for transformative learning and meaningful justice
Illiberalism and Administrative Government
Get PDFDriven by the perception that liberal democracy is in a state of crisis across the developed world, political and legal commentators have taken to contrasting two alternatives: “illiberal democracy” (or populism) and “undemocratic liberalism” (or technocracy). According to the logic of this antinomy, once an erstwhile liberal-democratic nation-state becomes too populist, it is on the path toward illiberal democracy; once it becomes too technocratic, it is on the path toward undemocratic liberalism.
While the meanings of liberalism and democracy are historically and conceptually fraught, the contemporary discourse of liberal democratic crisis assumes a few minimal definitions. Within this discourse, liberalism means something like “the protection of the rights of minorities and individuals, guarantees of citizens’ liberty, and the subjection of the government to the constraints imposed by the rule of law.” And democracy means something like “the combination of popular sovereignty and majority rule.” Given the size of the population of nearly all modern nation-states, that combination is thought to require a representative mechanism: comparatively free, fair, and competitive elections, in which the people choose representatives to govern their common life
International Investment Governance and Achieving a Just Zero-Carbon Future
Get PDFAs developing countries continue to be the most negatively affected by climate change and the energy transition, it is increasingly critical that they receive foreign direct investment and financial support to build climate resilience, adapt to climate impacts, avoid carbon lock-in and fossil fuel dependence, and leverage their rich endowments of renewable and extractive resources to prepare for the zero-carbon future.
There is a disconnect and fundamental misalignment between international investment law and the international climate change regime, comprising the United Nations Framework Convention on Climate Change (UNFCCC) and the Paris Agreement. Existing investment treaties—including their centerpiece, investor–state dispute settlement (ISDS)—are hostile to states’ ability to address the climate crisis and build a zero-carbon future. Investment treaties and ISDS will deter, delay or water down states’ climate-related measures, and increase their costs for states.
This briefing details how attempts to “re-balance” the international investment regime by refining investment protection and arbitration provisions do not address the fundamental misalignment of investment treaties with both climate goals and the broader sustainable development agenda. States can design treaties that support their national and global goals, reinforcing investment governance in treaties that can: Promote specific climate-aligned investment, by identifying the barriers to such investment and fostering international support; Strengthen governance of investment to minimize harms and leverage potential benefits; and Encourage and facilitate cooperation
Taking AIM 1
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Courts, Constitutionalism, and State Capacity: A Preliminary Inquiry
Get PDFModern constitutional theory deals almost exclusively with the mechanisms for controlling the exercise of public power. In particular, the focus of constitutional scholars lies in explaining and justifying how courts can effectively keep the exercise of public power within bounds. But there is little point in worrying about the excesses of government power when the government lacks the capacity to get things done in the first place. In this Article, we examine relations between the courts, constitutionalism, and state capacity other than through limiting state power. Through a series of case studies, we suggest how courts confront the problem of state building, and how the question of state capacity informs constitutional doctrine. Our studies consist of litigation over life-saving medication in Brazil, “engagement” remedies in South Africa, the problem of pretrial detention in India, and the validity of India’s recent biometric identification project. As we show, state capacity is a crucial variable in the development of constitutional doctrine — and while engaging with the issue of state capacity, courts often play a role in facilitating its expansion. The case studies identify a number of mechanisms that courts use to encourage capacity development: providing incentives to enhance capacity, guiding and directing the state to perform specific actions, compensating for weak capacity by absorbing the problem, and endorsing measures that purport to increase capacity. We then offer an expressly idealized model by which courts can negotiate capacity-related concerns. Courts can, in certain instances, respond to the problem of state capacity through weak-form, dialogic, experimentalist forms of review. The precise role that courts can and should play in this regard remains to be fully studied, but focusing on the question of state capacity allows us to better explain contemporary constitutional doctrine in several jurisdictions, and highlights the challenges involved in at once creating and limiting state power
Is a Science of Comparative Constitutionalism Possible?
Get PDFNearly a generation ago, Justice Scalia and Justice Breyer debated the legitimacy and value of using foreign law to interpret the American Constitution. At the time, the matter was controversial and invited the interest of both judges and scholars. Foreign law had, after all, been relied on in significant cases like Roper v. Simmons and Lawrence v. Texas. Many years on, there is still much to be debated — including the purpose and potential benefits of judicial engagement with foreign law — but “comparative constitutional law” has unquestionably emerged as a field of study in its own right. We have seen the publication of scores of articles and books that compare constitutional systems and elaborate reflections by judges over the nature and form of comparative judicial reasoning. Today, it no longer seems necessary to demonstrate, as Professor Mark Tushnet once did, “the possibilities of comparative constitutional law.”
Though the study of comparative constitutional law may not quite require a defense at present, much remains to be settled. In the late 1990s and early 2000s, the question — crudely put — was whether we could compare the constitutional law of different nations. Could a comparison between rules and developments in country A and country B occur in an intelligible and meaningful fashion? Though comparative constitutional law was not new to the American legal academy, it had declined in importance over the years, thereby requiring the field to be somewhat reborn. Now that comparisons between constitutional orders are commonplace, greater attention is being devoted to a different question: how is comparative constitutionalism to be conducted? The question implicates tasks that stretch far beyond the judicial citation of foreign legal materials. The recent crisis of constitutional democracy and the phenomenon of democratic backsliding has, for example, led to an outpouring of comparative literature. It seems natural, even important, to compare the authoritarian turn in, say, Hungary, where Viktor Orbán was recently reelected as Prime Minister, with developments in countries such as India, Poland, Russia, Turkey, and Venezuela — and perhaps to reflect on President Donald Trump’s term in office in light of the global experience. But the ease of making such comparisons masks the hard question of precisely how to conduct such inquiries