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Charting Your Own Path: Anurima Bhargava\u27s Lawyer-Leadership in Action
Get PDFAnurima Bhargava (CLS ’02) is an accomplished civil rights lawyer who has served as Chief ofthe Educational Opportunities Section of the Civil Rights Division at the U.S. Department ofJustice and Director of the Education Practice at the NAACP Legal Defense Fund. She is theFounder and Director of Anthem of Us, a strategic advisory and consulting firm that promotesdignity and justice in workplaces, schools, and communities, the Chair of the U.S. Commissionon International Religious Freedom, and produces and advises on documentary films.Throughout her career, Anurima has served on numerous task forces and working groups,including the White House Task Force to Prevent Campus Sexual Assault and the Supportiv eSchool Discipline Initiative. Anurima’s career has been one of influence and impact.
Masked by this impressive biography is a winding and unpredictable career path, charted by acentral but sometimes unacknowledged facet of lawyer-leadership: leadership of self. Likemany successful lawyers, Anurima began her career in law with a federal judicial clerkship. Fivemonths later, she left. In taking that risky and unorthodox step, Anurima realized that beforeshe was prepared for an impactful career leading others and leading change, she first had totake command of her career and steer it in directions that were right by her and her principles,and right for her and the life she wanted to lead
Letter to Council Members Regarding Council Draft 5
Get PDFWe understand that the ALI Council will consider Council Draft 5 (CD5) of the Restatement of the Law, Copyright (Copyright Restatement) project at its meeting on January 20-21, 2021. We appreciate the opportunity to provide comments on CD5. We hope that you will give careful consideration to these comments and send CD5 back to the Reporters to address the problems we describe below
The Classic Arguments for Free Speech 1644-1927
Get PDFThis chapter examines the classic arguments for freedom of speech. It traces the first comprehensive argument for freedom of speech as a limiting principle of government to John Milton’s Areopagitica, a polemic against censorship by a requirement of prior licensing in which Milton develops an argument for the pursuit of truth through exposure to false and heretical ideas rather than the passive reception of orthodoxy. Despite Milton’s belief in the advancement of understanding through free inquiry, he was far from liberal in the modern sense of that term and he did not, for instance, extend the tolerance he advocated to Catholic religious texts. The chapter then assesses what James Madison had to say about the role of public opinion as a crucial element in the creation of political authority and the preservation of rights, and considers Justice Oliver Wendell Holmes, Jr’s opinions about the freedom of speech. It also looks at how the celebrated federal judge Learned Hand conceives of the freedom of speech as a majority-creating procedure rather than an individual right, while Justice Louis Brandeis understood the freedom of speech to be an individual liberty important as such but especially important for its contribution to democratic character. Ultimately, the most widely-read of the classic arguments for free speech is that developed by John Stuart Mill in his Essay On Liberty
How Law Made Neoliberalism
Get PDFWe live in an era of intersecting crises-some new, some old but newly visible. At the time of writing, the COVID-19 pandemic has already caused nearly 500,000 deaths in the United States alone, with many more deaths on the horizon in the coming months. Since its arrival in the United States, the virus has intersected with and magnified long-neglected problems-radical disparities in access to healthcare and the fulfillment of basic needs that disproportionately impact communities of color and working-class Americans, alongside a crisis of care for the young, elderly, and sick that stretches families and communities to the breaking poin
The Legal Framework for Offshore Carbon Capture and Storage in Canada
Get PDFAverting catastrophic climate change requires immediate action to prevent additional carbon dioxide and other greenhouse gases being released into the atmosphere. However, even that may not be sufficient, with many scientists now warning that it will likely also be necessary to reduce the existing atmospheric carbon dioxide load. That could be achieved using negative emissions technologies that remove carbon dioxide from the atmosphere and store or utilize it in some way. One promising technology is direct air capture (“DAC”) which uses liquid chemical solutions or solid sorbent filters to capture carbon dioxide from the air and concentrate it into a pure stream.
Current DAC technologies are highly energy intensive and must be powered by renewable energy sources to achieve negative emissions. Ideally, DAC equipment would be co- located with a renewable energy facility, at a site where carbon dioxide can be stored or used. There is growing interest in the possibility of locating systems offshore in areas with high wind energy capacity and sub-seabed geologic formations that are suitable for storing carbon dioxide. One possible site off the west coast of Canada – known as the Cascadia Basin – is currently being explored in a Pacific Institute for Climate Solutions study, called Solid Carbon. This paper was developed as part of that study. It provides a comprehensive analysis of legal issues associated with deploying an offshore DAC system, powered by offshore wind turbines, in Canadian waters and storing the captured carbon dioxide in sub-seabed rock formations
Mine the Gap: Using Racial Disparities to Expose and Eradicate Racism
Get PDFFor decades, lawyers and legal scholars have disagreed over how much resource redistribution to expect from federal courts and Congress in satisfaction of the Fourteenth Amendment\u27s promise of equal protection. Of particular importance to this debate and to the nation given its kaleidoscopic history of inequality, is the question of racial redistribution of resources. A key dimension of that question is whether to accept the Supreme Court\u27s limitation of equal protection to public actors\u27 disparate treatment of members of different races or instead demand constitutional remedies for the racially disparate impact of public action.
For a substantial segment of the nation\u27s population as well as its judiciary and legal culture, governmentally mandated redistribution, and particularly racial redistribution, of resources to remedy the disparate results of public action is anathema to our constitutional order – so much so that such redistribution may provoke violence that horribly magnifies inequality. Avoiding that prospect leads us to propose a new constitutional understanding of the relationship between disparate impact and treatment to serve as an alternative to racial redistribution – or, should our legal culture change sufficiently in reaction to current events, as a necessary supplement to redistribution.
While acknowledging the need to mind the racial and other gaps that public action persistently creates and tolerates, our strategy calls upon public actors and oversight bodies to mine the gaps for dispositive evidence of disparate treatment. Compared with how federal courts and our legal culture currently understand disparate treatment, our approach is more honest about the existence and meaning of centuries of unrelenting racial disparities and more insistent on transparency about why disparities keep occurring and whether they are innocent. Yet, the proposal also is moderated by its continuing prioritization of disparate treatment over disparate impact per se; by the extent to which it remains constitutionally and culturally precedented; by its objective of reform but not necessarily outright racial redistribution; and by its effort to avoid rowing upstream against the nation\u27s individualistic current or being swept by it over treacherous and violent falls.
In offering this approach, we recognize the need constantly to calibrate the breadth of the concession being made to liberty over equality and community, in order to keep the voracious appetite of the nation\u27s individualism from consuming all hope of equity and social solidarity among diverse populations
Constructing Countervailing Power: Law and Organizing in an Era of Political Inequality
Get PDFThis Article proposes an innovative approach to remedying the crisis of political inequality: using law to facilitate organizing by the poor and working class, not only as workers, but also as tenants, debtors, welfare beneficiaries, and others. The piece draws on the social-movements literature, and the successes and failures of labor law, to show how law can supplement the deficient regimes of campaign finance and lobbying reform and enable lower-income groups to build organizations capable of countervailing the political power of the wealthy. As such, the Article offers a new direction forward for the public-law literature on political power and political inequality. It also offers critical lessons for government officials, organizers, and advocates seeking to respond to the inequalities made painfully evident by the COVID-19 pandemic
New Tech, New Deal: Mining Policy Options in the Face of New Technology
Get PDFThroughout the history of mining, technological innovation has played a vital role across all cycles of mining projects. The new wave of technological adoption is a combination of evolutionary and revolutionary technologies, with an increasing focus on the latter. An acceleration in investments in disruptive technologies in recent years has seen the large-scale mining sector finally catching up with a dynamic that has already advanced in many other sectors. The reasons for this shift include more difficult geology, declining ore deposits, the need to reverse a secular decline in productivity, the need to improve safety for mine workers, a need to manage environmental impacts, and – more recently – a reaction to pressures from the COVID-19 crisis.
The technologies in question are a suite of different innovations brought from other fields that work together in concert: • Enablers of digitization such as radio-frequency identification (RFID) sensors, wearables, drones, and satellites. • Users of big data such as machine learning and artificial intelligence. • Integrators of big data such as 5G, the Internet of Things (IoT), systems management software, and blockchain technology. • Process improvers such as automated machinery, electric vehicles, digital twins, water management and tailings recovery technologies, and renewable energy generation
Using New York Law to Advance Equity in the Transportation & Climate Initiative Program
Get PDFReducing pollution from the transportation sector is one of the most important steps to sustaining a livable climate. The transportation sector is the leading source of greenhouse gas (GHG) emissions in both the United States and New York. Cars, trucks and buses also emit other harmful air pollutants that more immediately contribute to public health threats such as asthma, heart disease, and premature death
FedAccounts: Digital Dollars
Get PDFWe are entering a new monetary era. Central banks around the world – spurred by the development of privately controlled digital currencies as well as competition from other central banks – have been studying, building, and, in some cases, issuing central bank digital currency (“CBDC”).
Although digital fiat currency is one of the hottest topics in macroeconomics and central banking today, the discussion has largely overlooked the most straightforward and appealing strategy for implementing a U.S. dollar-based CBDC: expanding access to bank accounts that the Federal Reserve already offers to a small, favored set of clients. These accounts consist of entries in a digital ledger – like other digital currencies – and are extremely desirable, offering high interest, instant payments, and full government backing with no limit. But U.S. law restricts these accounts to an exclusive clientele consisting primarily of banks. Privileged access to these accounts creates a striking asymmetry at the core of our monetary framework: government-issued physical currency is available to all, but government-issued digital currency (in the form of central bank accounts) is not.
This dichotomy is unwarranted. Congress should authorize the Federal Reserve to give everyone – individuals, businesses, and institutions – the option to maintain accounts at the central bank. We call these accounts FedAccounts. Unlike the CBDC approaches currently under discussion, which would use complicated and inefficient distributed ledger technology and be walled off from the existing system of money and payments, FedAccounts would be seamlessly interoperable with the mainstream payment system, relying on technologies that the Federal Reserve has used for decades