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Legal Coding Beyond Capital?
Get PDFCapital, I argue in ‘The Code of Capital: How the Law Creates Wealth and Inequality’, is coded in law. Legal coding is a process that adapts and molds formal law over time, often without explicit ex ante sanctioning by a legislature or a court. Several characteristics of formal law make it susceptible to coding, including its inherent incompleteness, the strong endorsement for private autonomy, and decentralised access to a state’s consolidated means of coercion. Would a progressive European Code of Private Law (EPL-code), as proposed by Hesselink, alter any of this and what would it take to ensure that the principles enshrined in this code would in fact be realised? These are the questions I will address in this short essay
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No full textPhoto of Marica Wright \u2722.https://scholarship.law.columbia.edu/through_the_gale_podcast/1006/thumbnail.jp
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No full textPhoto of Sam Spital, Director of Litigation at the NAACP Legal Defense and Educational Fundhttps://scholarship.law.columbia.edu/through_the_gale_podcast/1016/thumbnail.jp
Through the Gale Ep2: Can Big Law Be Anti-Racist?
No full textCan “Big Law,” the segment of the legal industry that regularly provides assistance, representation and counsel to the nation’s largest and most powerful corporate and economic actors, be an effective force for racial equity in the nation?
When the pandemic and the racial uprisings of 2020 laid bare America’s racial inequality, many big law firms pledged to be “anti-racist.” Since then these firms have launched new “diversity and inclusion” efforts to address representation within their firms, and expanded their commitment to pro-bono and legal service. Many large firms have also joined the Law Firm Anti-Racism Alliance, collaborating to promote racial justice within the law. But as large corporate entities, big law firms exist primarily to service their clients. Are these legal entities which are intertwined with a highly stratified economy, capable of contributing to an anti-racist society? If so, what are the crucial steps? In the third installment of our podcast, Professor Scott Cummings (UCLA) and Debo Adegbile (WilmerHale) join the hosts to address the role of “Big Law” in shaping a multiracial democracy.https://scholarship.law.columbia.edu/through_the_gale/1003/thumbnail.jp
Election Law Localism and Democracy
Get PDFAmerican federal and state elections are largely run by local officials. Although election law is almost entirely determined by the federal government and the states, elections are actually conducted by thousands of different county and city elections offices. This decentralization of election administration has often, and fairly, been criticized as resulting in undesirable interlocal variation in the application of election rules, inefficiency, and racial discrimination. Yet, in 2020, local election administration, particularly in large urban areas, was a source of strength. Local officials proved to be resilient, innovative, and attentive to local conditions. The record-high turnout in the face of a once-in-a-century pandemic was in considerable part due to their efforts to make voting easier and more accessible. These efforts, in turn, have triggered a reaction, with many states adopting new laws intended to curtail local authority.
This Article examines the local role in the 2020 election, together with the state pushback of 2021, as a study of both the surprising significance of local officials in promoting democracy and the place of local government in our intergovernmental system more generally. Local election offices are among the least formally empowered units of local government. They are charged solely with implementing state laws and policies. Yet, the 2020 election indicates they can exercise their authority to promote democracy in their communities. On the other hand, as with local governments generally, local power in election administration is fragile and can be stripped away by hostile state-level forces. By showcasing the importance of local elections officials, the 2020 election has made them a new site of conflict over the strength of American democracy
Relying on Restatements
Get PDFRestatements of the Law occupy a unique place in the Americanlegal system. For nearly a century, they have played a prominent and influential role as legal texts that courts routinely rely on in a wide variety of fields. Despite their ubiquitous and pervasive use by courts, Restatements are not formal sources of law. While they resemble statutes in their form and structure, Restatements are produced entirely by a private organization of experts set up to clarify and simplify the law and thus lack the force of law on their own. And yet, courts treat them as formal and authoritative sources of law, a reality that has thus far received hardly any systematic scrutiny. As this Article argues, courts’ anomalous treatment of Restatements routinely distorts the process of common law development by introducing a plethora of institutional problems into the fray and has in recent years produced needless controversy about the utility of the Restatements themselves.
This Article unravels the complexity and pitfalls of the unique legal authority embodied in Restatements, which elides the traditional categories of authority that courts are familiar with. It argues that the working of this unique legal authority is masked by the manner in which Restatements seek to emulate the language, form, and structure of ordinary statutes, despite crucial differences between the two. Courts have in turn been taken by the Restatements’ combination of substantive content and statute-like formulation and resorted to a variety of different techniques of reliance in their use of Restatements, many of which unwittingly limit their own lawmaking power in the common law over time. The Article then proposes a set of Restatement-specific canons of construction for courts to use in their reliance on the text of Restatements, each of which is tailored to the unique nature of authority invested in them
Education Is Speech: Parental Free Speech in Education
Get PDFEducation is speech. This simple point is profoundly important. Yet it rarely gets attention in the First Amendment and education scholarship.
Among the implications are those for public schools. All the states require parents to educate their minor children and at the same time offer parents educational support in the form of state schooling. States thereby press parents to take government educational speech in place of their own. Under both the federal and state speech guarantees, states cannot pressure parents, either directly or through conditions, to give up their own educational speech, let alone substitute state educational speech. This abridges their freedom of speech and even compels them to adopt government speech.
The argument can be understood in terms of Pierce v. Society of Sisters. That case forbids compulsory state education. Here it must be added that states cannot evade that decision by using other means to impose state education.
The vindication of parents’ freedom of educational speech would have far reaching consequences. It would secure parental authority, protect against governmental conformity, defend religious liberty, accomplish a second disestablishment, and move toward fulfilling Brown v. Board of Education’s promise of equality. Last but not least, it would serve the best interest of each child
Our Kind of People 1
No full texthttps://scholarship.law.columbia.edu/ross_smith_gallery/1000/thumbnail.jp
New York Environmental Legislation in 2021
Get PDFThis annual survey of New York environmental legislation describes numerous new laws on single-use plastics, lead exposure, drinking water, fuel oil, climate resilience, solar energy, invasive species and other areas that were signed into law in 2021
PLUS Politics: Tackling the EIA Impact Gap
Get PDFPLUS POLITICS is a multi-part series of briefs from the Columbia Center on Sustainable Investment that aims to encourage practitioners to apply a more systematic political lens to their work on governance in the extractive industries. Each brief will deal with a key governance issue and will provide a brief analysis of its political challenges and practical recommendations to address them