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The Field of State Civil Courts
Get PDFThis symposium Issue of the Columbia Law Review marks a moment of convergence and opportunity for an emerging field of legal scholarship focused on America’s state civil trial courts. Historically, legal scholarship has treated state civil courts as, at best, a mere footnote in conversations about civil law and procedure, federalism, and judicial behavior. But the status quo is shifting. As this Issue demonstrates, legal scholars are examining our most common civil courts as sites for understanding law, legal institutions, and how people experience civil justice. This engagement is essential for inquiries into how courts shape and respond to social needs and structural inequality and what all of this means for the present and future of American democracy.Two key motivations drive scholarly interest in state civil courts. One motivation is generating knowledge. Historically, legal scholarship has largely ignored the most common and ordinary aspects of American civil justice in favor of studying the uncommon and the extraordinary. Thus, many of our core premises and assumptions—in civil procedure, administrative law, contracts, torts, and even constitutional law—are based on an understanding of only a sliver of formal civil justice activity. By case count, that slice is roughly two percent, the percentage of civil cases handled by federal courts each year, creating a glaring existential problem for legal scholarship. We need to know about the institutions that handle the other ninety-eight percent of civil matters to answer the most basic questions about civil law and the civil justice system, to say nothing of exploring broader social, economic, and political questions that intersect with civil courts’ work
Teaching Cultural Competence in Law School Curricula: An Essential Step to Facilitate Diversity, Equity, & Inclusion in the Legal Profession
Get PDFLaw schools must recognize and seek to remove the barriers to teaching cultural competence and DEI and provide appropriate training and workshops for law professors. Providing law professors with the tools to integrate cultural competency into existing curricula is a first and crucial step to ensure that law professors are well-versed in both their own cultural competency, and in the ability to provide cultural competency training to their students. The culturally competent student will become a culturally competent lawyer with the skillset to make impactful contributions towards DEI in and beyond the practice of law
DEI in the Legal Profession: Identifying Foundational Factors for Meaningful Change
Get PDFIn this Essay, we offer a critical communication pedagogy as one particular framework for using dialogue “a process of sensitive and thorough inquiry . . . to (de)construct ideologies, identities, and cultures.”70 Such an educational space can serve as an outlet for students to process their cognitive dissonance regarding difference at the intrapersonal level—our fourth factor. Intrapersonal factors, such as cognitive dissonance, if not affirmed and processed, can lead to the continual questioning of one’s place within law school and the legal profession—a continual feeling of imposter syndrome
Tax Harmony: The Promise and Pitfalls of the Global Minimum Tax
Get PDFThe rise of globalization has become a double-edged sword for countries seeking to implement a beneficial tax policy. On one hand, there are increased opportunities for attracting foreign capital and the benefits that increased jobs and tax revenue brings to a society. However, there is also much more tax competition among countries to attract foreign capital and investment. As tax competition has grown, effective corporate tax rates have continued to be cut, creating a “race-to-the-bottom” issue.
In 2021, 137 countries forming the OECD/G20 Inclusive Framework on BEPS passed a major milestone in reforming international tax by successfully introducing the framework of a global minimum corporate tax, known as Pillar Two. It aims to set a floor for corporate tax rates with various corrective measures so that multinational enterprises’ income will be taxed once in either source country or residence country at a substantive tax rate. Hence, Pillar Two is the first implementation of the “single tax principle” at the global level. Because Pillar Two requires an unprecedented amount of coordination among countries, it is important to understand Pillar Two thoroughly so that countries can maneuver the challenges of implementation, while still enjoying the ultimate benefit that would come from this global tax harmony.
This Article analyzes the issues of tax competition and why most countries in the world have come to the conclusion that a global minimum tax is needed. This Article explains the single tax principle as the theoretical underpinning of Pillar Two, breaks down the principles and policies that comprise Pillar Two, and anticipates what promise and pitfalls passage of the global minimum tax will bring. Because the basis of Pillar Two is a direct extension of the Global Intangible Low Tax Income (GILTI) and Base Erosion and Anti-Abuse Tax (BEAT) provisions of the Tax Cuts and Jobs Act, it is reasonable to anticipate that the global minimum tax will be considered a success if it is implemented by all the G20 countries
Inhuman Copyright Scene: The Forgotten Law of Art in the Holocaust
Get PDFArtists, authors, musicians, and other creative individuals formed an integral part of the horrific life in the ghettos, concentration camps, and extermination camps during the Holocaust. Through their works, Jewish prisoners documented the atrocities of the Nazis and exposed the untold stories of six million Jews who walked or labored to death. The vast majority of the authors of these works were murdered in gas chambers, labor camps, and ghettos. While much has been written about looted works of art, which were stolen from Jewish families during the Nazi occupation, this material covers only one limited subset of questions relating to ownership of works owned or created by Jews during the Holocaust. Scholarship on art and authorship in the Holocaust has failed to legally and morally explore the works that were created in the most extreme circumstances under which copyrighted works have ever been created. This Article aims to remedy this lack of awareness. The Article opens a debate that has no comparable example in human history.
The lack of social and legal discourse on property rights vested in works created within the ghettos and concentration camps has created legal anomalies that perpetuate historical injustice. These anomalies, disguised as copyright rules, prohibit legal owners of these works from claiming their rights and restrict public access to these works, while permitting public bodies (such as European and international museums and archives) to make repositories of these works, to declare ownership of the works, and to patronize their social fate and unprecedented historical value. This Article aims to reconcile the unexplored tension between the authorial rights in these works and the public interest in accessing and learning from them. Copyright laws protect and incentivize access to and use of creative voices vested in cultural commodities in a manner that is mutually beneficial to creators and communities of listeners. The creative voices of Jewish prisoners in the ghettos and concentration camps have been continuously silenced since the end of the Holocaust. From the moment they were stripped of their basic humanity in the ghettos until now, more than seventy years later, authors, artists, musicians, theatrical and opera playwrights, and stage actors have yet to receive legal protection in their works.
This Article offers the first inquiry into the fundamental law of ghetto art. The Article focuses on works created by Jewish prisoners in the ghettos, concentration camps, and extermination camps, with the aim to expose the many flaws in the way contemporary copyright laws are used to hold these works captive in institutions where they do not belong, rather than freeing them to the public in order to raise awareness, provide moral respect to their authors, rescue them from illegitimate owners, and deliver historical justice. As the third-generation of Holocaust survivors, we find this Article a moral duty. It is a duty that travels through works of art, music, and authorship and tells the many stories that the creators of the works could not tell. The unsettling findings of our research call for a reassessment of the common standards applied to the use and ownership of copyrighted works created during the Holocaust within the ghettos and concentration and extermination camps—in the most inhuman copyright scene humanity has ever created
Enforcing Conservation Easements: The Through Line
Get PDFIn enforcement cases, courts tend to treat conservation easements as if they were traditional servitudes. This poses a major risk to the effectiveness of conservation easements as land protection tools. If, for example, courts extinguish conservation easements via merger, or bar holders from enforcing them on laches or estoppel grounds, or interpret them in favor of free use of property, many of the conservation gains made in the United States over the last three decades could end up being ephemeral.
This article tackles this problem by providing a solid foundation for the next chapter in conservation easement enforcement. It clearly articulates the ways in which conservation easements are different from traditional servitudes. It provides a roadmap of often-overlooked bodies of law relevant to their enforcement. It also brings together the handful of enforcement cases in which the courts (in one case, the dissenting judges) recognized the special status of conservation easements. These cases address different issues but there is a clear unifying theme—a through line: conservation easements are created to benefit the public and carry out legislatively stated public purposes, and it is contrary to the public interest to blindly apply to them principles intended to facilitate the marketability and development of land or resolve disputes between private parties.
Armed with this knowledge, courts as well as nonprofit and government holders will be far better equipped to deal with the coming wave of enforcement cases in a manner that protects the public interest
Small Suburbs, Large Lots: How the Scale of Land-Use Regulation Affects Housing Affordability, Equity, and the Climate
Get PDFHousing costs in major coastal metropolitan areas nationwide have skyrocketed, impacting people, the economy, and the environment. Landuse regulation, controlled primarily at the local level, plays a major role in determining housing production. In response to this mounting housing crisis, scholars, policymakers, and commentators are debating whether greater state involvement in local land-use decision-making is the best path forward.
We argue here that there are good reasons to believe that continuing on the current path—with local control of land-use regulation as it is— will lead to persistent underproduction of housing. The benefits of housing production are primarily regional, including improved job markets, increased socioeconomic mobility, and reduced greenhouse gas emissions. But the costs associated with producing more housing are often local, felt at the neighborhood level. Local governments whose voters are impacted by the local negative impacts of housing and will usually have less incentive to consider those regional, and national, benefits and approve housing. Recent political science, planning, economics, and legal research shows that smaller local jurisdictions tend to produce less housing, and when political institutions decentralize control over housing to the sublocal (e.g., neighborhood) scale, less housing is approved.
A central theory in academic research in land-use regulation and local government law has been the idea that competition among highly fragmented local governments can produce more efficient outcomes in public services and land-use regulation, even if there may be significant inequities across local jurisdictions in outcomes. Our analysis shows that this theory no longer accurately describes how fragmented local governance affects economic efficiency. Indeed, our analysis makes clear that fragmented local governance is both inequitable and inefficient, at least in the context of land-use regulation. Our analysis also raises questions about local government law scholarship contending that increased local governmental power can effectively address the dysfunctions of metropolitan areas in the United States.
We present a range of policy proposals to address the problems we identify. First, greater state intervention in local land-use regulation is necessary. While a greater state role need not (and probably should not) entirely displace local control, it is essential to ensure that the larger-scale benefits of housing are appropriately considered. Second, we note that the highly fragmented local land-use regulatory system imposes challenges for housing production, in part, because variation among local regulatory practices creates barriers to entry for new housing across jurisdictions. Accordingly, we advocate for a state role to increase the standardization of local land-use regulatory tools as a key step to help advance greater housing production, even where local control is maintained
Comments in Response to Request for Information to Inform Interagency Efforts to Develop the American Conservation and Stewardship Atlas
Get PDFOn January 2, 2022, the Department of the Interior published a notice in the Federal Register seeking Information to Inform Interagency Efforts to Develop the American Conservation and Stewardship Atlas. This letter responds to the Department’s request for information.
Our comments focus on what we believe would be a useful framework for the Atlas. Our comments proceed in 5 parts: (1) broad comments about conservation, the Conservation and Stewardship Atlas, and the America the Beautiful Initiative; (2) the need to provide a universal baseline of ecological health that includes ecological potential, existing conditions, and a landscape health assessment; (3) the benefits and risks of recognizing a continuum of conservation; (4) avoiding a “lemons” market in the conservation sphere by providing transparent information about the purpose, management, efficacy, and durability of conservation projects included in the Atlas; and (5) the need to develop an assessment methodology and report card that creates transparency along the continuum of conservation
Public Undersight
Get PDFThe laws governing transparency and accountability in government are deeply flawed, plagued by steep financial costs, high barriers to access, and widespread corporate capture. While legal scholars have suggested a wide variety of fixes, they have focused almost exclusively on legal solutions. They have largely overlooked a growing set of grassroots efforts that seek to reconstruct government information extralegally, rather than work through existing legal structures or remedy breakdowns in the formal transparency law regime.
An array of bottom-up movements to circumvent the formal transparency law and challenge the government’s monopoly on information have sprung up around the country in recent years across a wide variety of substantive areas. Activists now rely on public sources of information and extralegal monitoring to track where ICE conducts immigration raids, observe police activity in communities of color, monitor air pollution near industrial sites, and collect data on bail decisions. I refer to these efforts as forms of “public undersight.”
By ignoring these increasingly influential grassroots movements, transparency law scholars have overlooked important developments in the public’s ability to hold government actors to account. Fleshing out these extralegal forms of transparency enriches our understanding of government oversight and allows a more nuanced and complex view of the information ecosystem that sustains a liberal democracy to come to light. This Article aims to widen the aperture of the transparency law literature and bring the rise and effects of these extralegal movements into view.
In doing so, it makes three contributions. First, it offers a descriptive account of the public undersight regime, defining the concept and chronicling the various efforts and movements that fall within its scope. Second, it offers a normative account. It highlights the ways that these extralegal efforts can remedy flaws in the transparency law regime and democratize public access to government. It also explores potential drawbacks and risks.
Finally, the Article addresses gaps in the transparency law scholarship. It draws on recent works exploring extralegal activism and social movements to examine how these grassroots efforts can be used to expand our conception of public oversight and reimagine the task of government transparency and accountability. And it links the transparency law scholarship to the field of surveillance studies, using insights derived from the surveillance studies literature to illuminate the power of these grassroots transparency efforts to serve as a means of resistance—allowing communities long subjected to intrusive forms of government surveillance to co-opt the tools and techniques of the government and stare back
Playing the Long Game: Expediting Permitting Without Compromising Protections
Get PDFThe Biden Administration’s efforts to expedite a transition to clean energy have prompted calls for permit reform. Clean energy relies heavily upon critical minerals and transitioning to a clean energy economy demands a global increase in mineral production. Some commentators suggest that environmental standards must be loosened in order to achieve efficiency. This premise offers short term gain in exchange for long-term pain. It also poses a false dilemma by failing to distinguish between productive and unproductive causes of delay in the permitting process. The permit process creates opportunities to eliminate, reduce, or mitigate risks. These opportunities may cause short-term delays in exchange for the long-term benefit of designing a better project or avoiding environmental catastrophes. The increased demand for minerals should not overshadow the productive purposes served by permitting.
At the same time, there are opportunities to improve permitting efficiency without compromising rigorous health and safety standards. This requires identifying and addressing unproductive causes of delay within the permit process. Analytical rigor does not appear to cause delay in the permitting process. Empirical evidence reveals that the majority of permitting decisions are made within a reasonable timeframe for the complexity of the project. Some decisions encounter excessive delays, but this occurs even where analytical rigor is not required. The disparity in decisionmaking times suggests that factors other than regulatory requirements contribute significantly to project delays. Causes of delay include inadequate agency budgets, a lack of qualified staff, staff turnover, delays receiving information from permit applicants, and compliance with other laws.
Based upon this information, three simple actions can be taken to expedite mine permit processing times without sacrificing analytical rigor. First, avoid delay caused by insufficient agency capacity. This can be achieved by increasing agency staff, stabilizing budgets, rebuilding expertise, and encouraging confident decisionmaking even where it results in litigation. Second, reduce delay by creating tools that make the legal structure, permitting requirements, and available information more transparent and publicly available. This can be achieved by creating a mine permitting hub with flow charts clarifying the permitting process and identifying permit authorities. Environmental checklists would help permit applicants submit high quality applications that do not require supplementation. Additionally, a geographically organized database of previous environmental studies would avoid encourage tiering and avoid unnecessarily repetitive studies. Third, use the NEPA process as a tool to avoid delay caused by uncoordinated inter-agency permitting requirements. These tools can promote efficiency without eliminating analytical rigor and without waiting for statutory or regulatory reforms. Implementing these recommendations could help the Biden Administration dispel the myth that permit reform requires loosening environmental standards or analytical rigor as we respond to the challenges of climate change