Global Health Research Center of Central Asia
Columbia Law School Scholarship ArchiveNot a member yet
5770 research outputs found
Sort by
The Institutionalist Turn in Copyright
Get PDFThe institutionalist turn refers to the reality that over the last decade and a half, the Court’s copyright jurisprudence has come to focus less and less on directly resolving substantive issues within the landscape of copyright doctrine. It has instead become a principal site of debate and disagreement over issues that have a direct bearing on the role, competence, and legitimacy of the Court within the copyright system. The institutionalist turn does not imply that the Court’s decisions have altogether avoided engaging substantive copyright issues; merely that its engagement of copyright doctrine has come to be intertwined with — and often overshadowed by — strong institutional considerations. These considerations can be seen to cluster around three analytically interrelated themes: (i) the Court’s role as faithful agent interpreting Congress’s directives as contained in the complex Copyright Act of 1976, (ii) the nature of legislative-judicial interaction and deference in the domain of copyright lawmaking, and (iii) the continuity — or lack thereof — between copyright’s adjudicative mechanisms and other legal areas.
The institutionalist turn described herein began to take shape toward the end of Chief Justice Rehnquist’s time on the Court and fully crystallized several years into Chief Justice Roberts’s tenure. While Roberts was formally seated as Chief Justice in 2005, it was not until several years later that the Roberts Court began its foray into copyright jurisprudence, triggering the new institutional dynamic. Since that time, roughly a decade ago now, the Court has decided twelve copyright cases. By contrast, the Rehnquist Court decided a sum total of ten copyright cases in twice that amount of time. What is additionally intriguing about the Roberts Court’s copyright jurisprudence is its very selection of copyright cases and issues to address. Of the copyright decisions handed down by the Roberts Court half (six out of twelve) have been procedural and remedial, i.e., adjectival. In twice as much time, the Rehnquist Court handed down only two such decisions.
In what follows, I describe the origins and entrenchment of the Court’s institutionalist turn in its copyright jurisprudence and show how its copyright decisions reflect a heightened concern with the Court’s institutional role and legitimacy. While the turn may have resulted in substantive copyright law doctrine coming to be sidelined in the Court’s jurisprudence, it nevertheless entrenched a strong prudentialist impulse in the judicial engagement of the copyright system, one that directs attention away from the polarizing justificatory debates that have long surrounded substantive copyright law — often described as the “copyright wars.” Yet in so doing, it also indirectly complicated copyright’s own legitimacy crisis by injecting into it a new set of methodological disagreements involving statutory interpretation and the role of the judiciary in the copyright system
TTG 02
No full textPhoto of Debo P. Adegbile, Partner, Wilmer Cutler Pickering Hale and Dorr LLP.https://scholarship.law.columbia.edu/through_the_gale_podcast/1010/thumbnail.jp
TTG 00
No full textPhoto of Andres Estevez \u2723.https://scholarship.law.columbia.edu/through_the_gale_podcast/1002/thumbnail.jp
Systemic Stewardship
Get PDFThis Article frames a normative theory of stewardship engagement by large institutional investors and asset managers that is congruent with their theory of investment management — “Modern Portfolio Theory” — which describes investors as attentive to both systematic risk as well as expected returns. Because investors want to maximize risk-adjusted returns, it will serve their interests for asset managers to support and sometimes advance shareholder initiatives that will reduce systematic risk. “Systematic stewardship” provides an approach to “ESG” matters that serves both investor welfare and social welfare and fits the business model of large, diversified funds, especially index funds. The analysis also shows why it is generally unwise for such funds to pursue stewardship that consists of firm-specific performance-focused engagement: Gains (if any) will be substantially “idiosyncratic,” precisely the kind of risks that diversification minimizes. Instead, asset managers should seek to mitigate systematic risk, which most notably would include climate change risk, financial stability risk, and social stability risk. This portfolio approach follows the already-established pattern of assets managers’ pursuit of corporate governance measures that may increase returns across the portfolio, even if not maximizing for particular firms. Systematic stewardship does not raise the concerns of the “common ownership” critique because the channel by which systematic risk reduction improves risk-adjusted portfolio returns is to avoid harm across the entire economy that would damage the interests of employees and consumers as well as shareholders
Confronting Indeterminacy and Bias in Child Protection Law
Get PDFThe child protection legal system faces strong and growing demands for change following at least two critiques. First, child protection law is substantively indeterminate; it does not precisely prescribe when state agencies can intervene in family life and what that intervention should entail, thus granting wide discretion to child protection agencies and family courts. Second, by granting such discretion, the law permits race, class, sex, and other forms of bias to infect decisions and regulate low-income families and families of color.
This Article extends these critiques through a granular analysis of how indeterminacy at multiple decision points builds on itself. The law does not tether permissible interventions to specific types of maltreatment. Minor cases can lead to family separations and even terminations of parent-child relationships. Steps required for reunification can become unrelated to grounds for state intervention. States expend many resources to separate families after failing to spend similar amounts to preserve families.
A child protection reform legislative agenda has begun to emerge, but without comprehensively addressing the indeterminacy at the heart of the present legal structure. This Article argues a transformed system must include determinate substantive standards for various stages of child protection cases to limit the system’s scope and the potential for biased decisionmaking. The law should define neglect and abuse with precision, both to limit unnecessary state intervention and set maximum levels of state intervention based on the specific maltreatment at issue. The law should require states to spend as much money on helping families stay together as they would on maintaining children in foster care. State action to terminate the legal relationship between parents and children should be limited to situations in which any form of parent-child relationship is harmful to the child
Judges in Lawyerless Courts
Get PDFThe typical American civil trial court is lawyerless. In response, access to justice reformers have embraced a key intervention: changing the judge’s traditional role. The prevailing vision for judicial role reform calls on trial judges to offer a range of accommodation, assistance, and process simplification to people without legal representation.
Until now, we have known little about whether and how judges are implementing role reform recommendations or how judges behave in lawyerless courts as a general matter. Our lack of knowledge stands in stark contrast to the responsibility civil trial judges bear – and the discretionary power they wield – in dispensing justice for millions of unrepresented people each year. While today’s civil procedure scholarship focuses on documenting and analyzing growing judicial discretion in complex litigation, a much larger sphere of unexamined and largely unchecked judicial discretion has been hiding in plain sight in state civil trial courts.
At the intersection of civil procedure, judicial behavior, and access to justice, this Article presents a theoretically driven multijurisdictional study of judicial behavior. It examines three state civil courts in jurisdictions at the top, above the median, and near the median in the Justice Index (a ranking of state-level access to justice efforts). Despite significant jurisdictional differences, judges’ behavior is surprisingly homogenous in the data. Rather than offering accommodation, assistance, and simplification as reforms suggest, judges maintained courts’ legal complexity and exercised strict control over evidence presentation.
The Article theorizes that a fundamental structural problem drives this unexpected finding – civil courts were not designed for unrepresented people. And judicial behavior is shaped by three factors that result: ethical ambiguity and traditional assumptions about a judge’s role in adversarial litigation, docket pressure, and systematic legal assistance provided to petitioners only. The Article concludes judicial role failure is but one symptom of lawyerless courts’ fundamental ailment: the mismatch between courts’ adversarial, lawyer-driven dispute resolution design and the complex social, economic, and interpersonal problems they are tasked with solving for users without legal training
Removing Carbon Dioxide Through Artificial Upwelling and Downwelling: Legal Challenges and Opportunities
Get PDFA 2022 report by the Intergovernmental Panel on Climate Change warned that, to keep global average temperatures within 1.5oC above pre-industrial levels, emissions must reach net-zero by mid-century. The report concluded that achieving net-zero emissions will require the removal of carbon dioxide from the atmosphere “to counterbalance hard-to-abate emissions” from sectors like agriculture, aviation, and shipping. The report further noted that, if deployed at large scales, carbon dioxide removal (“CDR”) could also be used to achieve net negative emissions and thus effectively reduce the atmospheric concentration of carbon dioxide.
A variety of CDR techniques, both terrestrial and ocean-based, have been proposed. This paper focuses on artificial upwelling and downwelling, an ocean-based approach which uses large, vertical pipes to cycle water between the surface and deep ocean. The goal is to upwell nutrient rich water from depth to the surface, where it will stimulate the growth of phytoplankton that uptake carbon dioxide from the atmosphere, and downwell carbon dioxide-saturated water from the surface to depth. This should, in theory, result in carbon dioxide being taken out of the atmosphere and sequestered in the deep ocean. However, further research is needed to fully assess the carbon sequestration potential of artificial upwelling and downwelling, as well as its possible co-benefits and risks.
Uncertainty regarding the laws governing artificial upwelling and downwelling has been identified as a potential barrier to research and deployment. This paper helps to fill existing knowledge gaps by analyzing the application of international and domestic (U.S.) law to artificial upwelling and downwelling
New Producer Contract Terms and Uncertainty: Lessons From the Recent Past
Get PDFThe petroleum industry is volatile, and governments in “new producer” countries have operated at a significant information disadvantage when negotiating with international oil companies. This challenge is growing today; new producer countries face intensifying questions around whether to offer fiscal incentives to maintain investment in the face of 1) the pandemic-induced volatility in oil prices and 2) long-term questions about the future of the industry in the face of the climate crisis and the global energy transition.
This confluence of short-term and long-term uncertainty is prompting a reexamination of the narrative that once took hold in many new producer countries. The traditional story was one of linear progression from being non-producers to small levels of production to ultimately having oil and gas become a major economic contributor over the long term.
This notion of progression was associated with a commonly held theory: After a country’s first major discovery, the geological risk that wells will be dry was expected to decrease. Countries could therefore shift from a position of having to grant tax breaks (and other concessions) to international investors, to taking a tougher stance in laws and negotiations for new projects going forward.
In this paper, co-authored with NRGI we examine whether this theory has been borne out in practice and make recommendations to support new producers in their navigation of the uncertainty associated with the energy transition
A Pause on Proof-of-Work: The New York State Executive Branch\u27s Authority to Enact a Moratorium on the Permitting of Consolidated Proof-of-Work Cryptocurrency Mining Facilities
Get PDFAs cryptocurrency mining facilities have expanded their energy consumption, certain fossil fuel power plants have increased energy generation to provide behind-the-meter power to cryptocurrency miners. The New York legislature has responded by proposing bills to enact a moratorium on state permitting of such consolidated facilities while the New York Department of Environmental Conservation (DEC) studies their impacts through a Generic Environmental Impact Statement (GEIS), but these bills have stalled. This white paper analyzes the legal authority of the New York executive branch to put in place such a moratorium and concludes that the executive branch does possess such authority, though the paper notes that without legislative change, such a moratorium would be unlikely to reach cryptocurrency mining facilities receiving all of their power from the grid. This paper concludes by presenting policy considerations relevant to additional legislative action on proof-of-work mining operations
No Runs, Few Hits and Many Errors: Street Stops, Bias and Proactive Policing
Get PDFEquilibrium models of racial discrimination in law enforcement encounters suggest that in the absence of racial discrimination, the proportion of searches yielding evidence of illegal activity (the hit rate) will be equal across races. Searches that disproportionately target one racial group, resulting in a relatively low hit rate, are inefficient and suggest bias. An unbiased officer who is seeking to maximize her hit rate would reduce the number of unproductive stops toward a group with the lower hit rate. An unbiased policing regime would generate no differences in hit rates between groups.
We use this framework to test for racial discrimination in pedestrian stops with data from the contentious “Stop, Question and Frisk” (SQF) program of the New York City Police Department (NYPD). SQF produced nearly five million citizen stops from 2004–2012. The stops are regulated by both Terry (federal) and DeBour (New York) case law on reasonable suspicion. Stops are well-documented, including a structured format for reporting the indicia of reasonable suspicion that motivated the stop. We exploit these data to examine the Floyd court’s claim. We decompose stops on the basis of suspicion, as reported by officers at the time of the stop. We conduct five tests to assess whether racial discrimination characterizes SQF stops: the allocation of officers relative to crime and population in specific areas, the decision to sanction conditional on a stop, the decision to arrest or issue a summons conditional on the decision to sanction, the efficiency of stops in seizing contraband including weapons, and updating processes by officers in their search activity. In each test, we include the reasonable suspicion rationale that officers indicated as the basis of the stop. We find consistent evidence of disparities in police responses to Black, Hispanic, and Black Hispanic civilians, and significant differences by race in the use of specific indicia of reasonable suspicion that motivate stops. The higher error rates for specific indicia of suspicion suggest that rather than individualized bases of suspicion, officers may be activating stereotypes and archetypes to articulate suspicion and justify street seizures