Global Health Research Center of Central Asia
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No full textLine art image of Kate Waldock, research fellow with Columbia Law School\u27s Ira M. Millstein Center for Global Markets and Corporate Ownership.https://scholarship.law.columbia.edu/beyond_unprecedented_podcast/1019/thumbnail.jp
Global Governance of Environmental Mobility: Latin America & the Caribbean
Get PDFEnvironmental events – including droughts, floods, hurricanes, sea level rise and earthquakes play a role alongside socioeconomic and political factors in triggering displacement, migration and planned relocation in Latin America and the Caribbean (LAC). LAC countries experience the strongest relationship between environmental hazards and migration in the world. From 2008 to 2019, there were more than 23 million reported incidents of internal displacement in the context of disasters linked to sudden- and slow-onset hazards linked to disasters. LAC has developed a significant normative framework in response to environmental mobility, especially relative to other regions. In practice, LAC countries use regional refugee law, regional mobility agreements, and regular and exceptional migration categories in national immigration law to extend admission and stay to LAC nationals moving across borders in the context of climate change and disasters. In theory, other mechanisms also strengthen the normative framework, including visa-free travel and recognition of the principle of non-refoulement, although law and policy on internal environmental mobility needs further development. Grounded in principles of regional refugee law, regional integration, and national immigration law, LAC’s relatively robust normative framework already facilitates the movement of LAC nationals in the context of climate change and disasters, and demonstrates that existing legal tools are available for addressing environmental mobility
Why Supervise Banks? The Foundations of the American Monetary Settlement
Get PDFAdministrative agencies are generally designed to operate at arm’s length, making rules and adjudicating cases. But the banking agencies are different: they are designed to supervise. They work cooperatively with banks and their remedial powers are so extensive they rarely use them. Oversight proceeds through informal, confidential dialogue.
Today, supervision is under threat: banks oppose it, the banking agencies restrict it, and scholars misconstrue it. Recently, the critique has turned legal. Supervision’s skeptics draw on a uniform, flattened view of administrative law to argue that supervision is inconsistent with norms of due process and transparency. These arguments erode the intellectual and political foundations of supervision. They also obscure its distinguished past and deny its continued necessity.
This Article rescues supervision and recovers its historical pedigree. It argues that our current understanding of supervision is both historically and conceptually blinkered. Understanding supervision requires understanding the theory of banking motivating it and revealing the broader institutional order that depends on it. This Article terms that order the “American Monetary Settlement” (“AMS”). The AMS is designed to solve an extremely difficult governance problem – creating an elastic money supply. It uses specially chartered banks to create money and supervisors to act as outsourcers, overseeing the managers who operate banks.
Supervision is now under increasing pressure due to fundamental changes in the political economy of finance. Beginning in the 1950s, the government started to allow nonbanks to expand the money supply, devaluing the banking franchise. Then, the government weakened the link between supervision and money creation by permitting banks to engage in unrelated business activities. This transformation undermined the normative foundations of supervisory governance, fueling today’s desupervisory movement. Desupervision, in turn, cedes public power to private actors and risks endemic economic instability
Theorizing Beyond The Code of Capital : A Reply
Get PDFIn this reply, I respond to and elaborate on the critique of my book “The Code of Capital” published in this special issue. The common thread of the critiques is the call for more theorizing of the themes the book addresses, especially the conception of state power, of resources, social relations and questions of knowledge and access to knowledge about the law, or epistemology. This reply is only a first response to issues that do require further analysis and I am hoping to follow suit on at least some of them in the near future
Trading Pharma Goods the WTO Legal Framework
Get PDFTrading of pharma goods has attracted widespread global attention in the wake of the COVID-19 pandemic. The Agreement on Trade in Pharmaceutical Products (“Pharma Agreement”) – a sectoral agreement between a handful of WTO members – was concluded in 1994 and aimed to eliminate duties on various pharmaceutical products. Nevertheless, this is all that the Pharma Agreement does: it eliminates duties and does not touch upon the regulatory aspects relating to marketing of pharmaceutical goods. WTO members remain sovereign to decide on this score, but must observe the WTO Licensing Agreement as well as nondiscrimination. Thus, while the intensity of regulatory intervention is a function of a WTO member’s risk aversion, members still have to ensure that their intervention does not counteract the assumed obligation aiming, roughly, to address protectionism
Obsolescence: The Intractable Production Problem in Contract Law
Get PDFContract law has long suffered from an institutional problem: Which legal institution can best create an efficient law for commercial contracts that can overcome obsolescence” – the persistence of rules that only solve yesterday’s contracting problems? Until the early 20th century, contract law was largely created by common law courts. The law\u27s default rules were efficient when created and courts updated them as commerce changed. But there were few rules and the common law process is slow. In response, the 20th century saw public and private lawmaking bodies enact commercial statutes in discrete legal areas such as secured credit, commercial paper and bankruptcy. Cohesive interest groups rapidly updated these discrete rules, but the rules, both originally and as changed, served only the interests of the creating groups. Private lawmaking efforts also assumed a generalist portfolio. In the Uniform Commercial Code, they reached beyond specialized fields to the law of sales and then, in the Restatements, to all contracting behavior. But these generalist bodies lack the institutional capacity to update, so many of their rules have not changed with changing commercial practice. Obsolescence is not innocuous: it can induce inefficient contracting practices and encourage parties to behave strategically. The need for a modern general law of commercial contracts remains. Specialized lawmakers are subject to interest group capture and the generalist lawmaking bodies cannot update. Courts have responded better to the obsolescence concern, but they are slow and limited. Hence we suggest a public/private regulatory response to the vexing production problem in contract law
Privacy Asymmetries: Access to Data in Criminal Defense Investigations
Get PDFThis Article introduces the phenomenon of “privacy asymmetries,” which are privacy statutes that permit courts to order disclosures of sensitive information when requested by law enforcement but not when requested by criminal defense counsel. In the U.S. adversarial criminal legal system, defense counsel are the sole actors tasked with investigating evidence of innocence. Law enforcement has no constitutional, statutory, or formal ethical duty to seek out evidence of innocence. Therefore, statutes that selectively suppress defense investigations selectively suppress evidence of innocence. Privacy asymmetries form a recurring, albeit previously unrecognized, pattern in privacy statutes. They likely arise from legislative oversight and not reasoned deliberation. They risk unnecessary harms to criminal defendants and the truth-seeking process of the judiciary by advantaging the search for evidence of guilt over that for evidence of innocence. The number of these harms will only increase in the digital economy as private companies collect immense quantities of data about our heart beats, movements, communications, consumption, and more. Much of that data will be relevant to criminal investigations and available to the accused solely through the very defense subpoenas that privacy asymmetries block. Moreover, the introduction of artificial intelligence and machine learning tools into the criminal justice system will exacerbate the consequences of law enforcement’s and defense counsel’s disparate access to data. To avoid enacting privacy asymmetries by sheer accident, legislators drafting privacy statutes should include a default symmetrical savings provision for law enforcement and defense investigators alike
Legal Internalism In Modern Histories of Copyright
Get PDFLegal internalism refers to the internal point of view that professional participants in a legal practice develop toward it. It represents a behavioral phenomenon wherein such participants treat the domain of law (or a subset of it) as normative, epistemologically self-contained, and logically coherent on its own terms regardless of whether the law actually embodies those characteristics. Thus understood, legal internalism remains an important characteristic of all modern legal systems. In this Review, we examine three recent interdisciplinary histories of copyright law to showcase the working of legal internalism. We argue that while their interdisciplinary emphasis adds to the conversation about copyright, it also overlooks the centrality of legal internalism in the evolution of copyright, a domain that has always been understood as a creation of the law. The Review unpacks the core tenets of legal internalism, examines how it operates as an important variable of legal change, contrasts it with the idea of legal consciousness, and shows how legal internalism directs and regulates the entry of nonlegal considerations into different areas of law
The Use of Technical Experts in Software Copyright Cases: Rectifying the Ninth Circuit’s “Nutty” Rule
Get PDFCourts have long been skeptical about the use of expert witnesses in copyright cases. More than four decades ago, and before Congress extended copyright law to protect computer software, the Ninth Circuit in Krofft Television Productions, Inc. v. McDonald’s Corp. ruled that expert testimony was inadmissible to determine whether Mayor McCheese and the merry band of McDonald’s characters infringed copyright protection for Wilhelmina W. Witchiepoo and the other imaginative H.R. Pufnstuf costumed characters. Since the emergence of software copyright infringement cases in the 1980s, substantially all software copyright cases have permitted expert witnesses to aid juries in understanding software code. As the Second Circuit recognized in Computer Associates International, Inc. v. Altai, Inc., the ordinary observer standard “may well have served its purpose when the material under scrutiny was limited to art forms readily comprehensible and generally familiar to the average lay person,” but as to computer programs, district courts must have “discretion … to decide to what extent, if any, expert opinion, regarding the highly technical nature of computer programs, is warranted in a given case.”
In a shocking departure from the decisions of every other circuit that has confronted software copyright infringement litigation, the Ninth Circuit reaffirmed and applied the bar on expert testimony originating in Krofft Television Productions to all copyright disputes, including those involving highly technical computer software code. The court in Antonick v. Electronic Arts, Inc. held that lay juries must decipher and analyze software code – distinct hexadecimal assembly code languages for different processors – without the assistance of expert witnesses, a rule that the authoring judge characterized at the oral argument as “nutty.”
The Ninth Circuit’s rule overlooks the key distinction between the use of technical experts to analyze substantial similarity as opposed to enabling lay judges and jurors to perceive the underlying works. Just as it would be absurd to ask a lay jury with no familiarity with Kanji characters to assess whether a translation of Harry Potter and the Philosopher’s Stone into Japanese infringed the English original without the aid of a bilingual translator, it makes no sense to ask a non-technical jury to compare computer source codes written in different assembly languages to determine substantial similarity without expert assistance. We contend, consistent with the views of every court outside of the Ninth Circuit that has addressed the issue, that courts should permit the use of technical experts to enable lay judges and juries to perceive the meaning of computer languages and computer code
Power Transitions in a Troubled Democracy
Get PDFWritten as our contribution to a festschrift for the noted Italian administrative law scholar Marco D’Alberti, this essay addresses transition between Presidents Trump and Biden, in the context of political power transitions in the United States more generally. Although the Trump-Biden transition was marked by extraordinary behaviors and events, we thought even the transition’s mundane elements might prove interesting to those for whom transitions occur in a parliamentary context. There, succession can happen quickly once an election’s results are known, and happens with the new political government immediately formed and in office. The layer of a new administration’s political leadership directing its activities is generally quite thin, dependent on the training and discipline of the permanent civil service populating high as well as low elements of government to implement its policies. If, as is often the case, the incoming ministers have been parliamentarians with a particular interest in the matters for which they are now responsible as ministers – perhaps even as shadow ministers for the opposition – they may already know a good deal about and have relationships with the civil service staffs they will be inheriting. And the continuity of staff and tradition of service across different governments also benefits newcomers, easing the learning curve they face upon taking office. They do not need the transition teams that new Presidents use to educate themselves about the government they are about to lead.
Neither the President nor a new member of Congress, however, takes office immediately after national elections. Although the election may have considerably changed Congress’ political complexion, the pre-election Congress remains in office for two more months, and although the voters may have elected a Democrat to replace a Republican President, the Republican President and his political appointees in the executive branch – including all departmental and important agency heads – can remain in office at least seventeen days after the new Congress convenes. This transition time gives the outgoing President a window in which to further policies that the voters may just have rejected. “There is something profoundly troubling,” Sanford Levinson of the University of Texas wrote in anticipation of the election of 1996, “in allowing repudiated presidents to continue to exercise the prerogatives of what is usually called ‘the most powerful political office in the world.’
Power transition in the United States is further complicated by the thickness of the political layer within governmental departments and agencies; by the absence of any practical need for presidential candidates to commit themselves before election to the more important appointments they will make if elected; by the way the Constitution’s explicit separation of service in Congress and the Executive branch impacts the likelihood that new appointees will be familiar with the operation of the body to which they are appointed; and by the necessity that the President’s choices for the most important political positions in his administration be confirmed (approved for their office after a public hearing before the relevant committee) by the Senate then sitting. All of this can considerably slow, overall, the process of political change. Changing course has the speed and difficulty of navigating a large, heavy vessel, not a simple motorboat.
The transition from Trump to Biden, then, is both troubled and troubling. As work on this essay was concluding, Republican senators used the filibuster to block creation of a bipartisan commission to investigate and report on the January 6 assault on Congress by legislation Republican negotiators had accepted as balanced – and in the national transition of such inquiries in response to major national events. The legislative situation, given both the narrowness of Democrat control and the stated priorities of Republican leadership to put all their efforts into blocking the new administration’s success – using party discipline to preclude bipartisanship – will not just stymie legislation. The tools of executive power are now in President Biden’s hands, and these roadblocks may tempt him further down the paths his predecessors have taken, asserting increasing control over executive government’s functioning, acting on his own where cooperation cannot be had. To repair the political damage President Trump inflicted on the government bureaucracy may prove impossible without President Biden appearing himself still further to thicken the political layers atop the civil service. Admiring his motivations, and troubled by the administration he succeeded, the difficulty is seeing a clear path back to a government constrained by the norms that had long kept our democracy safe