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A Tale of Two Civil Procedures
Get PDFIn the United States, there are two kinds of courts: federal and state. Civil procedure classes and scholarship largely focus on federal courts but refer to and make certain assumptions about state courts. While this dichotomy makes sense when discussing some issues, for many aspects of procedure this breakdown can be misleading. Two different categories of courts are just as salient for understanding American civil justice: those that routinely include lawyers and those where lawyers are fundamentally absent.
This Essay urges civil procedure teachers and scholars to think about our courts as “lawyered” and “lawyerless.” Lawyered courts include federal courts coupled with state court commercial dockets and the other pockets of state civil courts where lawyers tend to be paid and plentiful. Lawyerless courts include all other state courts, which hear the vast majority of claims. This Essay argues that this categorization reveals fundamental differences between the two sets of court procedures and much about the promise and limits of procedure. The Essay also discusses how this dichotomy plays out in three of today’s most contentious topics in civil procedure scholarship: (1) written and unwritten proceduremaking, (2) the role of new technology, and (3) the handling of masses of similar claims. This categorization illuminates where and how lawyers are essential to procedural development and procedural protections. They also help us better understand when technology should assist or replace lawyers and how to reinvent procedure or make up for lawyers’ absence. Finally, they reveal that fixing court procedure may simply not be enough
This Is Not a Drill: The War Against Antiracist Teaching in America
Get PDFOn January 5, 2022, Professor Kimberlé Williams Crenshaw received the 2021 Triennial Award for Lifetime Service to Legal Education and the Legal Profession from the Association of American Law Schools (AALS). In this modified acceptance speech delivered at the 2022 AALS Awards Ceremony, she reflects on the path that brought her to this moment and the crisis over antiracist and social justice education that is unfolding today. Arguing that the legal academy bears a collective responsibility to fight back against the silencing of antiracist frameworks, she calls on legal educational institutions to confront their historical agnosticism toward racial subordination and to defend the freedom to teach and learn Critical Race Theory against the concerted efforts to undo its legacy
Changes and Convergence of Bankruptcy Law: Recent Experience in Brazil
Get PDFBankruptcy regimes across the globe have been constantly changing in response to new market demands and the evolution of insolvency law principles and objectives. Part of the academic community argues that such changes may lead to a convergence of domestic bankruptcy laws, as a result of globalization and market integration. Scholars have reviewed the phenomena of changes and convergence of bankruptcy laws in Europe, East Asia and Africa. However, little attention has been given to Latin American countries, such as Brazil. This paper aims at contributing to the discussion on changes and convergence of bankruptcy law, by focusing on four recent experiences within the Brazilian legal system. This paper concludes that there are indicia of a continuous convergence of Brazilian bankruptcy law with foreign and international norms, as changes in Brazilian bankruptcy law have increasingly mirrored the law and practice of certain metropolitan nations, as well as global norms and soft laws developed by international organizations and standard setting bodies. This paper further discusses the diverse array of processes through which convergence has taken place in Brazilian bankruptcy law, as well as the main driving forces underlying this convergence, such as the increasing influence of cross-border investments and international market players
CRT2 S1 Ep1: The Scarlet Letter of Incarceration: Special Mini Feature
Get PDFCRT can easily be presented as a practice of conflict. Contextualizing issues of race, law and policy can be very challenging for some and bring people to feel defensive, confused or upset. The guests on this Mini Feature continue the conversation on re-entry into community and family reunification, and help us learn how CRT can play out in our everyday relationships, between lawyers and clients and especially between mom and daughter. We speak with Shameeka France and her 11-year-old daughter, Empress, two powerful voices for resilience, healing and racial justice.https://scholarship.law.columbia.edu/crt2/1002/thumbnail.jp
CRT2 S1 Ep2: CRT and Family Regulation System: Toward Abolition
Get PDFThis episode of CRT2 features Professor Anna Arons, Joyce McMillan, and Professor Dorothy Roberts. Discussion topics include the need for abolition and how we can work toward a society that actually keeps children and families safe without relying on systematic violence.
Professor Arons speaks on her experiences as a public defender working in the family regulation system and shares insights from her recent COVID-19 related research which found that the withdrawal of New York City’s vast family regulation system during the pandemic did not lead to an increase in child abuse. Families found support elsewhere through community-based mutual aid and new government entitlements. In this way, the city’s shutdown became an unplanned experiment in abolition, “demonstrating a possible future absent the massive, oppressive apparatus of the family regulation system.https://scholarship.law.columbia.edu/crt2/1003/thumbnail.jp
CRT2 S1 Ep5: Race and the Reality of Reproductive Rights in the United States
Get PDFReproductive rights in the United States are being threatened more than ever. The enactment of state legislation curtailing the right to abortion – by imposing time limits, dictating mandatory waiting times, obligatory sonograms, and ever-stringent requirements for abortion clinics – is at an all-time high.
These statutes have set the scene for critical legal challenges, which will have far-reaching consequences and bring forth important questions regarding how these laws came to be, who are the individuals most affected by these provisions, how race factors into this equation, what the future holds for reproductive rights in the United States, and what we can do to better assist in the efforts to support the right to abortion.
This episode addresses some of these questions through a Critical Race Theory lens, giving special consideration to which communities are bearing the brunt of the impact of Texas and Mississippi’s efforts at limiting access to abortions. Joining us to discuss these issues is Professor Carol Sanger and Anna Rupani.https://scholarship.law.columbia.edu/crt2/1006/thumbnail.jp
The Right to Effective Self-Government
Get PDFProtecting individual rights is a core feature of democratic constitutionalism. The centralization of the means of coercion gave rise to the Hobbesian dilemma, the fear that this enormous power might be abused unless it be effectively controlled. In addition to dividing power among different branches of government or sharing it between the federation and its units, constitutions have fortified individual rights with judicial review and enforcement mechanisms against the executive branch to rein in state power.
Proposing a collective right to effective self-government sits oddly with a vision that pitches free individuals against an all-powerful state. Such a right can, however, be justified on two interrelated grounds. First, in the absence of effective protection by a state, individual civil and political rights remain empty declarations. Stateless people, Hannah Arendt has taught us, are the most vulnerable; they have no legal rights and no way of seeking protection as a matter of right
The Role of Arbitral Tribunals in Determining the Scope of the Fair and Equitable Treatment Standard
Get PDFWhether or not investor-State dispute settlement (“ISDS”) faces a “legitimacy crisis,” there is a “growing consensus” that it requires reform. The development of the fair and equitable treatment standard (“FET standard”) by arbitral tribunals been a salient factor in fomenting this consensus and is the subject of several reform proposals. A number of scholars, including Professors Sornarajah and Gus van Harten, claim the interpretative process undertaken by tribunals in relation to the FET standard has contributed to ISDS’ legitimacy crisis because it involves applying subjective notions of what adjudicators perceive to be desirable developments of the law. On the other hand, Professors Christoph Schreuer and Susan Franck opine that the FET standard is flexible by design because it permits a tribunal to adapt and apply written texts to changing realities and to engage in a “gap filling” function. Despite the discord between these positions, both share the premise that tribunals have been fundamental in elaborating the scope and content of the FET standard. The scholarship to date, however, provides an incomplete account of how tribunals have developed the FET standard. Without understanding this process, the capacity for reforms of the FET standard to effectively circumscribe tribunals’ interpretive discretion and enhance predictability and legal correctness will be constrained.
To address this lacuna, I conducted a comprehensive empirical analysis of the evolution of the FET standard. Using data generated from this analysis, coupled with doctrinal reviews of ISDS jurisprudence, this paper discusses two key findings. First, it evaluates the extent to which the language adopted in FET clauses influences (i) the probability that FET claims will succeed and (ii) tribunals’ interpretive methodologies (Section III). It concludes, contrary to conventional wisdom, that the treaty language has exerted limited influence on both fronts. Second, it traces the evolution of stability and predictability as a component of fair and equitable treatment (Section IV). The origin of the purported obligation to afford investors a stable and predictable legal and business framework can be traced to a series of awards that relied on ambiguous preambular statements in United States bilateral investment treaties (BITs) to justify its development. In turn, the sub-standard has been reinforced by the profusion of Energy Charter Treaty cases since 2008, where there is arguably a more solid foundation for such an interpretation
The Disability Cost Narrative: A Roundtable Discussion
Get PDFThe dominance of “cost narratives” in disability law and discourse warranted the inclusion of a scholarly roundtable discussion devoted to the topic. The transcription below captures this discussion among three disability legal scholars: Professors Elizabeth F. Emens, Kaaryn S. Gustafson, and Jasmine E. Harris
CRT2 S1 Ep8: The Backlash to CRT in France
Get PDFIn November 2021, Josephine Baker became the latest recipient of one of France’s highest honors — induction into the Pantheon. This honor is reserved for those who have made an indelible impact on French culture and history. Baker became the first black woman to be inducted, but the honor was also notable for the fact that she was born American. In a speech at the event, French President Emmanuel Macron praised Baker’s commitment to universalism.
What was the symbolic significance of Baker’s induction into the Pantheon and Macron’s subsequent remarks, and what does it mean that France chose to honor an American-born woman with one of their highest honors? In this episode, we talk to Professor Maboula Soumahoro to uncover some of these answers.https://scholarship.law.columbia.edu/crt2/1009/thumbnail.jp