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Defending the Planet Ep3: Back in the Paris Pact
Get PDFWith a new presidential administration in power, the United States has rejoined the 195-nation Paris climate agreement to combat global warming. But it is now clear that the emissions-reduction targets laid out in that 2015 accord are insufficient to prevent a catastrophic rise in global temperatures. And during the U.S. absence, the dynamic of international cooperation among major nations has shifted. What role can international cooperation play in the climate change fight, and what are its limits?
U.S. diplomat Sue Biniaz ’83 and European Climate Foundation CEO Laurence Tubiana, key architects of the Paris pact, join host Michael Gerrard to discuss multilateral cooperation on climate change.https://scholarship.law.columbia.edu/defending_the_planet/1003/thumbnail.jp
Automating Fairness? Artificial Intelligence in the Chinese Court
Get PDFHow will surging global interest in data analytics and artificial intelligence transform the day-to-day operations of courts, and what are the implications for judicial power? In the last five years, Chinese courts have come to lead the world in their efforts to deploy automated pattern analysis to monitor judges, standardize decision-making, and observe trends in society. This Article chronicles how and why Chinese courts came to embrace artificial intelligence, making public tens of millions of court judgments in the process. Although technology is certainly being used to strengthen social control and boost the legitimacy of the Chinese Communist Party, examining recent developments in the Chinese courts complicates common portrayals of China as a rising exemplar of digital authoritarianism. Data are incomplete, and algorithms are often untested.
The rise of algorithmic analytics also risks negative consequences for the Chinese legal system itself, including increased inequality among court users, new blind spots in the state’s ability to see and track its own officials and citizens, and diminished judicial authority. Other jurisdictions grappling with how to integrate artificial intelligence into the legal system are likely to confront similar dynamics. Framed broadly, our goal is to push the nascent literature on courts, data analytics, and artificial intelligence to consider the political implications of technological change. In particular, recent developments in China’s courts offer a caution that two powerful trends – ascendant interest in algorithmic governance and worldwide assaults on judicial authority – could be intertwined
Users Guide to History
No full textHistorical knowledge is necessary to make informed policy choices, but history’s methods are unsuited for determining what, exactly, those policies should be. This chapter examines how historians have been contributing to the New Legal Realist project, identifies obstacles in translating historical conclusions into policy arguments, and explores specific ways that the past can inform the present. Although the discipline of history may not produce concrete policy proposals, it can help us to think more critically about present-day issues by envisioning alternative solutions inspired by the past, identifying problems that become more apparent in historical context, reframing questions that need asking, and exploring causation. By explaining how our laws and legal practices came to be, historians can identify problems and their origins, which is a crucial first step to figuring out what to do next
Preemption: The Continuing Challenge
Get PDFThe decade of the 2010s witnessed the emergence and rapid spread of aggressive state preemption of local government actions. This “new preemption” consists of intentional, extensive, and sometimes punitive state efforts to block local action across a wide range of domains—from firearms regulation to the treatment of immigrants, workplace equity to environmental protection, the scope of anti-discrimination laws to the regulation of the sharing economy. This new preemption has roots going back to the turn of this century, and began to build decades ago, but it took off most dramatically after the Republican takeover of many state governments in 2010, and began to draw substantial scholarly attention around 2017-2018.
Preemption battles continue. The challenge posed by preemption to the structure of our state-local relationship continues to grow, even as preemption practices change, and our understanding of how to address the preemption problem evolves. So, too, the traditional — or classic — preemption involving judicial determinations of whether state laws actually conflict with local laws remains an important factor in sorting out state-local relations. New and classic preemption are often intertwined, as courts determine exactly what type of local action is preempted by state law.
Old and new preemption are about the same subject: what principles ought to guide the allocation of powers and responsibilities between our state and local governments. This article, which began as an address at a conference on preemption in early 2020, focuses on preemption developments in the two years — 2018 through early 2020 — after the initial burst of legal scholarship on the new preemption appeared. It reviews new preemptive measures by state legislatures, state court decisions, and the appearance of local conservative resistance to state legislation that advances progressive agendas. It concludes by considering the preemption principles proposed in The Home Rule NLC 21st Century Home Rule report to see what kind of state-local relationship those principles envision
The Fight Ahead
Get PDFThe sitting president of the United States, squarely defeated in the 2020 election and denied a second term, staged a counterrevolution on January 6, 2021-the day Congress was scheduled to confirm the results of the Electoral College. It was an unprecedented sight. A mob stormed the Capitol, overtook the House and Senate chambers, and ransacked the Speaker\u27s office. Instigated by the president, the insurrection was enabled by the leaders of the Republican Party who, for months, refused to recogniz.e the election results.
This counterrevolution was long in the making. Its eruption fully exposed the deep rift in this country
Arguing about the \u3cem\u3eJus ad Bellum\u3c/em\u3e
Get PDFQuite a bit of research suggests that international law’s argumentative practice has value insofar as it leads to or affirms some kind of normative settlement. This chapter uses the argumentative practice in the jus ad bellum to counter that view. The chapter’s central claim is that arguments about the jus ad bellum are valuable, even when they do not lead to normative settlement and the law’s content on the issue in dispute remains contested. The reason they are valuable is that they promote certain values that are associated with the rule of law
The Past, Present, and Future of the Restatement of Copyright
Get PDFIt is now six years since the American Law Institute (ALI) began work on its first ever Restatement of an area dominated by a federal statute: copyright law. To say that the Restatement of the Law, Copyright (hereinafter “Restatement”) has been controversial would be a gross understatement. Even in its inception, the ALI identified the project as an outlier, noting that it was likely to be seen as an “odd project” since copyright “is governed by a detailed federal statute.”1 Neither the oddity nor the novelty of the project, however, caused the ALI to slow its efforts to push the project forward, and despite the persistence of serious objections from within the membership of the project (including many of the project’s Advisers), the first draft of the Restatement is scheduled to go to a vote seeking adoption by the organization’s full membership in the middle of 2021
Review of 2020 Cases Under SEQRA
Get PDFThe courts decided 47 cases under the New York State Environmental Quality Review Act (SEQRA) in 2020. Of these, in the great majority – 31 – the courts upheld, or at least left alone, agencies’ decisions that a particular action did not require the preparation of a full environmental impact statement (EIS); in seven the courts rejected such decisions; and in eight the courts upheld EISs that had been prepared. (One case was unclassifiable.) The Court of Appeals issued no SEQRA decisions in 2020
Distributed Ledger Technology and the Securities Markets of the Future: A Stakeholder Survey
Get PDFThis Article evaluates the implications of distributed ledger technology (DLT) for the securities markets of the future and their regulation. DLT is an integral part of the larger revolution in computing, communication and data storage capacity that has transformed securities markets over the last few decades and promises further radical change in the years to come. The potential of DLT, if it can be realized, could improve the functioning of our securities markets while at the same time sharply reducing costs. Based on an interview survey of about 100 persons who play prominent roles in actually making these markets work or in regulating them, this Article reports on the most important topics and themes that have emerged from the wide range of interviewees’ opinions about the extent to which DLT will affect the future of securities markets and their regulation. A significant number saw the potential for DLT to transform securities markets and market structure, from the possibility of stock trading on DLT to the potential impact on intermediaries, the ordinary retail investor, and on preventing wrongdoing in the stock market. However, key questions remain about implementation and the appetite for making DLT-based changes among both market participants and regulators
Defining Crime, Delegating Authority – How Different are Administrative Crimes?
Get PDFAs the Supreme Court reconsiders whether Congress can so freely provide for criminal enforcement of agency rules, this Article assesses the critique of administrative crimes though a federal criminal law lens. It explores the extent to which this critique carries over to other instances of mostly well-accepted, delegated federal criminal lawmaking – to courts, states, foreign governments, and international institutions. By considering these other delegations through the lens of the administrative crime critique, the Article destabilizes the critique’s doctrinal foundations. It then suggests that if one really cares about liberty – not the abstract “liberty” said to be protected by the separation of powers, but rather the lived liberty gained through careful and accountable criminal lawmaking that is free from the pathologies that have bedeviled federal criminal law for more than a century – administrative crimes are normatively quite attractive