Digital Commons Network^™

Memo To The Sec On The Proposed Rule On Disclosure Of Payments By Resource Extraction Issuers, Perrine Toledano

Columbia Center on Sustainable Investment Staff Publications

CCSI strongly supports the transparency of contracts and tax flows. CCSI shares the belief of many stakeholders that transparency is essential to leverage extractive industries for sustainable development and is in the mutual interest of all stakeholders. However, some industry players continue to voice the concern that increased transparency would be harmful for their business. Therefore, CCSI is working to also establish the business case for transparency.

In one such case, some industry players have been lobbying against the regulations developed by the Security and Exchange Commission to implement the mandatory disclosure provisions of the Dodd Frank Wall Street Reform …

Are Institutional Investors Part Of The Problem Or Part Of The Solution?: Key Descriptive And Prescriptive Questions About Shareholders, Ben W. Heineman Jr., Stephen Davis

Ira M. Millstein Center for Global Markets and Corporate Ownership

Over the last twenty years, institutional investors have owned an increasing share of public equity markets — more than 70 percent of the largest 1,000 companies in the United States in 2009, for example. Over the past two years, in response to failures of some boards of directors and business leaders, shareholders, including institutional investors, have been given increased powers to participate in — or have disclosures about — discrete spheres of governance in publicly held corporations. Moreover, during this same period, and in multiple jurisdictions, there have been increasing calls from both the public and private sectors for institutional …

Wider Role For Our Miners In Africa, Lisa E. Sachs, Joel Negin, Glenn Denning

Columbia Center on Sustainable Investment Staff Publications

The Australian government is rapidly increasing aid to Africa. But the real story about the country's engagement in Africa is the massive investment by Australian companies in extractive industries.

More than 150 Australian resource companies are active in more than 40 African countries with a total investment greater than $20 billion, including in coal in Mozambique, copper and uranium in Zambia, gold in Eritrea and uranium in Malawi.

Implementing Recommendations From The Universal Periodic Review: A Toolkit For State And Local Human Rights And Human Relations Commissions, Human Rights Institute

Human Rights Institute

The United States’ international leadership in promoting human rights around the world is strengthened by state and local officials’ efforts to employ and advance human rights close to home. Indeed, state and local human rights and human relations commissions can play a pivotal role in help- ing the U.S. meet its own human rights obligations by ensuring fairness, dignity and opportunity for all in their communities.

This Toolkit provides information about a recent review of the United States’ human rights record under the United Nations’ Universal Periodic Review (“UPR”), which revealed a number of areas in which the United States …

Zambezi Valley Development Study, Lisa E. Sachs, Perrine Toledano

Columbia Center on Sustainable Investment Staff Publications

In June 2011, CCSI released a consultative draft report on Resource-Based Sustainable Development in the Lower Zambezi Basin, the result of a year-long inquiry into how the vast resource deposits in Tete province, combined with other major investments along the Nacala and Beira corridors, can be the basis for sustainable, equitable and inclusive growth in the Lower Zambezi Basin.

The report recommends a framework of actions by Mozambique and its public and private partners to ensure that Mozambique reaps a major boost to economic development from its vast resource endowments, while also respecting the profitability of private-sector investments in …

Discussion At Second U.S.-China Rule Of Law Dialogue, Stanley B. Lubman

Hong Yen Chang Center for Chinese Legal Studies

Professor Cheng analyzes the foundation and structure of the present configuration of Chinese legal institutions and its desirable future in a very small number of pages--- a brave and suggestive approach. (I am avoiding the term “Chinese legal system” for reasons that will be clear.) She begins by noting NPC Chairman Wu Banguo’s recent statement that China has now created “a socialist system of laws with Chinese characteristics” (hereafter SSLCC).

Chairmanship: The Effective Chair-Ceo Relationship: Insight From The Boardroom, Elise Walton

Ira M. Millstein Center for Global Markets and Corporate Ownership

This paper examines the role of the corporate Chair in the context of one of the most important relationships the Chair has – his or her relationship with the company’sCEO. To approach the topic, the Chairmen’s Forum sponsored a research effort to interview experienced Chairs,CEOs and stakeholders. After the Forum agreed on the project, a research plan was designed and approved by the sponsors. Key interview questions and interview candidates were reviewed and approved. The main areas of the interview included: background experience with the two roles; successful situations and what worked; challenges and what didn’t work; how a relationship …

United States Response To Questionnaire Concerning Boundaries And Interfaces With Respect To Copyright And Related Rights, June M. Besek, Jane C. Ginsburg, Lita Helman, Philippa Loengard, Eva Subotnik, Elana Bensoul

Faculty Scholarship

ALAI-USA is the U.S. branch of ALAI (Association Littèraire et Artistique Internationale). ALAI-USA was started in the 1980's by the late Professor Melville B. Nimmer, and was later expanded by Professor John M. Kernochan.

Tradition, Precedent, And Power In Roman Egypt, Ari Bryen

Studio for Law and Culture

This paper is one of a series of preliminary studies that I hope will eventually end in a book-length study of the history of law in the eastern provinces of the Roman Empire. The history of law in the provinces tends to be written in one of two ways: either as the story of how Roman rules and concepts interpenetrate local cultural and legal systems (the history of the many and varied “vulgarizations” of Roman law); or, in the wake of the “Mediterraneanist” paradigms of the twentieth century, as a story of how local communities seek to regulate themselves – …

Home Rule: Equitable Justice In Progressive Chicago And The Philippines, Nancy Buenger

Studio for Law and Culture

The evolution of the US justice system has been predominantly parsed as the rule of law and Atlantic crossings. This essay considers courts that ignored, disregarded, and opposed the law as the United States expanded across the Pacific. I track Progressive home rule enthusiasts who experimented with equity in Chicago and the Philippines, a former Spanish colony. Home rule was imbued with double meaning, signifying local self-governance and the parental governance of domestic dependents. Spanish and Anglo American courts have historically invoked equity, a Roman canonical heritage, to more effectively administer domestic dependents and others deemed lacking in full legal …

The Fortas Film Festival, Brian L. Frye

Studio for Law and Culture

The story of Jack Smith’s film Flaming Creatures and the “Fortas Film Festival” illustrates the dialectic of obscenity. The obscenity doctrine expresses the conventional wisdom that the First Amendment actually protects art, and protects pornography only by extension. But Flaming Creatures and the Fortas Film Festival suggest that obscenity is dialectical. The obscenity doctrine provides the thesis: art protects pornography, by justifying the protection of sexual expression. Flaming Creatures and the Fortas Film Festival provide the antithesis: pornography protects art, by normalizing sexual expression. The history of obscenity law provides the synthesis: art and pornography protect each other. In other …

Regret, Remorse And Accidents: Where The New Apology Laws Go Wrong, Jeffrey S. Helmreich

Studio for Law and Culture

Apologies have proven dramatically effective at resolving conflict and preventing litigation. Still, many injurers, particularly physicians, withhold apologies because they have long been used as evidence of liability. Recently, a majority of states in the U.S. have passed “Apology Laws” designed to lift this disincentive, by shielding apologies from evidentiary use. However, most of the new laws protect only expressions of benevolence and sympathy (such as “I feel bad about what happened to you”). They exclude full apologies, which express regret, remorse or self-criticism (“I should have prevented it,” for example). The laws thereby reinforce a prevailing legal construal of …

The Nation And Its Heretics: ‘Muslim Citizenship’, State Power And Minority Rights In Pakistan, Sadia Saeed

Studio for Law and Culture

In 1984, Pakistan’s military ruler General Zia-ul-Haq passed an executive Ordinance that made it a criminal offence for members of the heterodox Ahmadiyya community, a self-defined minority sect of Islam, to refer to themselves as Muslims and practice Islam in public. Ahmadis challenged the 1984 Ordinance in both the Supreme Court and the Federal Shariat Court in Pakistan – in the former on that grounds that the Ordinance violated their constitutionally guaranteed right to freedom of religion and in the latter on the grounds that it violated shari’a. In a clear departure from the Pakistani courts’ earlier rulings on the …

“Corporation Law Is Dead”: The Mystery Of Corporation Law At The Height Of The American Century, Harwell Wells

Studio for Law and Culture

In 1962, the corporation law scholar Bayless Manning famously wrote that “[C]orporation law, as a field of intellectual effort, is dead in the United States.” Looking back, most scholars have agreed with Manning, concluding that corporation law from the 1940s to the 1970s was stagnant, only rescued from its doldrums by the triumph of the theory of the firm and modern finance in the 1980s. This paper takes a new look at American corporate law during this time, asking why scholars believed corporation law was “dead” at the same time that the American corporation had seized the commanding heights of …

Streaming The International Silver Platter Doctrine: Coordinating Transnational Law Enforcement In The Age Of Global Terrorism And Technology, Caitlin T. Street

National Security Law Program

The dramatic expansion of technology and globalization over the last thirty years has not only facilitated transnational terrorist operations, but also has transformed the countermeasures utilized by law enforcement and amplified the need for counterterrorism coordination between foreign and domestic authorities. Crucially, these changes have altered the fourth amendment calculus, set out by the international silver platter doctrine, for admitting evidence seized in U.S.-foreign cooperative searches abroad. Under the international silver platter doctrine, courts admit the evidence gathered by foreign authorities abroad unless the unreasonable search is deemed a "joint venture" between U.S. and foreign authorities. Notably, the legal framework …

Preventive Detention In American Theory And Practice, Adam Klein, Benjamin Wittes

National Security Law Program

It is something of an article of faith in public and academic discourse that preventive detention runs counter to American values and law. This meme has become standard fare among human rights groups and in a great deal of legal scholarship. It treats the past nine years of extra-criminal detention of terrorism suspects as an extraordinary aberration from a strong American constitutional norm, under which government locks up citizens pursuant only to criminal punishment, not because of mere fear of their future acts. This argument further asserts that any statutory counterterrorism administrative detention regime would be a radical departure from …

"So Vast An Area Of Legal Irresponsibility"? The Superior Orders Defense And Good Faith Reliance On Advice Of Counsel, Mark W.S. Hobel

National Security Law Program

This Note argues that the modern superior orders defense represents the most relevant and just paradigm for assessing the potential criminal liability of U.S. interrogators who claim that they were authorized and counseled by government lawyers prior to using techniques that likely constituted torture. However, recent U.S. law, most importantly sections of the Detainee Treatment Act of 2005, constitutes an extension of the superior orders defense as it would apply to interrogators, and may not only fully immunize government officials and agents involved in interrogations, but also disrupt emerging international legal norms surrounding the superior orders defense.

Part I of …

Using Human Rights Mechanisms Of The United Nations To Advance Economic Justice, Risa E. Kaufman, Joann Kamuf Ward

Human Rights Institute

As a growing number of social justice lawyers employ human rights standards and strategies to advocate for their clients. human rights mechanisms of the United Nations have become a promising way for lawyers to work toward economic justice. These mechanisms are not only an alternative to traditional litigation and administrative advocacy but also unique opportunities for collaboration among U.S. civil society groups and engagement with policymakers. Because they are grounded in international human 1ights norms. human rights mechanisms have the potential to deal with social and economic issues beyond the reach of traditional domestic protections. By strategically using these mechanisms. …

Gender Justice In The Americas: A Transnational Dialogue On Violence, Sexuality, Reproduction, And Human Rights University, Human Rights Clinic, Centro De Derechos Humanos De La Universidad Diego Portales, Center For Reproductive Rights

Human Rights Institute

On February 23-25, 2011, over 100 women's rights, gender, and sexuality advocates and scholars from twenty countries in North, South, and Central America and the Caribbean gathered at the University of Miami in Miami, Florida to attend a groundbreaking convening, Gender Justice in the Americas: A Transnational Dialogue on Violence, Sexuality, Reproduction, and Human Rights. The Convening, hosted by the University of Miami School of Law Human Rights Clinic, University of Diego Portales Human Rights Center, the Center for Reproductive Rights, and Columbia Law School Human Rights Institute, brought together key players in the region to exchange views and …

Is Public Nuisance A Tort?, Thomas W. Merrill

Faculty Scholarship

Public nuisance has recently been dusted off as a potential source of legal redress for tobacco use, handgun distribution, lead paint removal, MTBE contamination, and global warming. The premise of this litigation is that public nuisance is a tort, and that courts have inherent authority as common law tribunals to determine what conditions qualify as a public nuisance. This article argues that public nuisance is properly regarded as a public action rather than a tort, as revealed by a number of its features, including the nature of the interest protected – rights common to the general public – and the …

Federalism And Federal Agency Reform, Gillian E. Metzger

Faculty Scholarship

This Article assesses three major preemption decisions from the 2008-2009 Term – Altria Group, Inc. v. Good, Wyeth v. Levine, and Cuomo v. Clearing House Ass'n – for their implications about the role of the states in national administrative governance. The Article argues the decisions are centrally concerned with using state law and preemption analysis to improve federal administration and police against federal agency failure. Federalism clearly factors into the decisions as well, but it does so more as a mechanism for enhancing federal agency performance than as a principle worth pursuing in its own right.

The decisions' …

Comparative Law: Problems And Prospects, George A. Bermann, Patrick Glenn, Kim Lane Scheppele, Amr Shalakany, David V. Snyder, Elizabeth Zoller

Faculty Scholarship

The following is an edited transcript of the closing plenary session of the XVIIIth International Congress of Comparative Law. The session took place on Saturday, July 31, 2010, in Washington, D.C., at the conclusion of the week-long congress, which is held quadrennially by the International Academy of Comparative Law (Académie Internationale de Droit Comparé). The remarks were given in a mix of French and English, but for ease of reading the transcript below is almost entirely in English.

Purple Haze, Clare Huntington

Faculty Scholarship

It takes only a glance at the headlines every political season – with battles over issues ranging from abortion and abstinence-only education to same-sex marriage and single parenthood – to see that the culture wars have become a fixed feature of the American political landscape. The real puzzle is why these divides continue to resonate so powerfully. In Red Families v. Blue Families: Legal Polarization and the Creation of Culture, Naomi Cahn and June Carbone offer an ambitious addition to our understanding of this puzzle, illustrating pointedly why it is so hard to talk across the political divide. In a …

The Uk Supreme Court Speaks To International Arbitration: Learning From The Dallah Case, George A. Bermann

Faculty Scholarship

Rarely, over the decades following its entry into force, was the 1958 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, or New York Convention, the subject of a judgment of the UK House of Lords. Yet, within barely over a year after its succession to the House of Lords in October 2009, the United Kingdom Supreme Court delivered a judgment that may not make up for all that lost time, but is deeply instructive nonetheless. The decision in Dallah Real Estate and Tourism Holding Company v. Ministry of Religious Affairs, Government of Pakistan became the vehicle …

New York's Revived Power Plant Siting Law Preempts Local Control, Michael B. Gerrard

Faculty Scholarship

Taking most observers by surprise, the New York State Legislature on June 22, 2011, overwhelmingly passed The Power NY Act of 2011. Governor Andrew Cuomo signed it on Aug. 4. The new law revives Article X of the Public Service Law after a nearly nine-year hibernation. As before, the law creates a one-stop, state-led program for permitting electric generating facilities while preempting local requirements. But the new Article X differs from its predecessor in several important ways: It covers facilities as small as 25 megawatts (down from the prior 80 megawatts threshold), it has even more generous provisions for funding …

Changing The International Law Of Sovereign Immunity Through National Decisions, Lori Fisler Damrosch

Faculty Scholarship

The international law of sovereign immunity derives from state practice embodied in national judicial decisions and legislation. Although some U.S. Supreme Court decisions refer to this body of law using terms like "grace and comity," the customary international law of sovereign immunity is law, which national courts should consider when arriving at immunity decisions. While it would be possible for a widely followed international treaty to work changes in customary international law, the UN Convention on Jurisdictional Immunities of States and Their Property has not done so yet. National legislation such as the U.S. Foreign Sovereign Immunities Act can precipitate …

Keynote Discussion: Just Exactly What Does A Transactional Lawyer Do?, William J. Carney, Ronald J. Gilson, George W. Dent

Faculty Scholarship

Panel discussion from the Center for Transactional Law and Practice at Emory University School of Law’s second biennial Transactional Law Conference, “Transactional Education: What's Next?” (June 2010).

Melms V. Pabst Brewing Co. And The Doctrine Of Waste In American Property Law, Thomas W. Merrill

Faculty Scholarship

Melms v. Pabst Brewing Co. may be the most important decision ever rendered by an American court concerning the law of waste. Unless your specialty is property law, that might not be enough to stir your interest. The doctrine of waste, after all, does not loom very large in public consciousness these days.

Nevertheless, waste has held a peculiar fascination for property theorists. The reason, I think, is that it touches directly on an important line of division in how we think about property. Does property exist primarily to protect the subjective expectations that particular owners have in particular things? …

Enforcing The Rules: Government And Citizen Oversight Of Mining, Erin Smith, Peter Rosenblum

Human Rights Institute

In recent history, mining has failed to deliver many of the benefits citizens expect, particularly in poorer nations rich in natural resources and high in hopes. Many of the reasons remain unclear. In some cases, the problem is linked to bad deals with mining companies. But no matter the quality of the deal, other problems arise from failure to effectively monitor and enforce the existing obligations. This report examines the monitoring of mining obligations, characterizes the main gaps, identifies policy options and good practices, and proposes practical ways for both government and civil society to improve monitoring and enforcement.

Serving 99 To 149 Years For Wearing Butt-Huggers And Resisting To Subscribe To Cable Tv: The Presence Of The Law In Chicano Theatre, Maria Patrice Amon

Studio for Law and Culture

In the canon of Chicano theatre, the law holds a prominent role; the relationship between Chicanos and the law is a theme explored widely across Chicano theatre in both comedy and tragedy. This paper discusses how the comedy of Chicano theatre conceals the insidiousness of unchallenged racial stereotypes and acts as a safety valve to release the pressures of an abjected community. Yet, where comedy conceals the structure of abjection, drama critically challenges the status quo Chicano drama is capable of questioning the authority of the dominant hegemony over the cultures it oppresses. Beginning from a framing of the law …