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Articles 1141 - 1170 of 4751
Full-Text Articles in Law
The Long Environmental Justice Movement, Jedediah S. Purdy
The Long Environmental Justice Movement, Jedediah S. Purdy
Faculty Scholarship
The standpoint of environmental justice has become integral to environmental law in the last thirty years. Environmental justice criticizes mainstream environmental law and advocacy institutions on three main fronts: for paying too little attention to the distributive effects of environmental policy; for emphasizing elite and professional advocacy over participation in decision making by affected communities; and for adhering to a woods-and-waters view of which problems count as “environmental” that disregards the importance of neighborhoods, workplaces, and cities. This Article highlights the existence of a “long environmental justice movement” that, like the long movements for racial equality and labor organizing, put …
The Jus Ad Bellum'S Regulatory Form, Monica Hakimi
The Jus Ad Bellum'S Regulatory Form, Monica Hakimi
Faculty Scholarship
This article argues that a form of legal regulation is embodied in decisions at the UN Security Council that condone but do not formally authorize specific military operations. Such decisions sometimes inflect or go beyond what the jus ad bellum permits through its general standards — that is, under the prohibition of cross-border force and small handful of exceptions. Recognizing that this form of regulation is both part of the law and different in kind from regulation through the general standards should change how we think about the jus ad bellum.
America’S Relation To World Order: Two Indictments, Two Thought Experiments, And A Misquotation, Philip C. Bobbitt
America’S Relation To World Order: Two Indictments, Two Thought Experiments, And A Misquotation, Philip C. Bobbitt
Faculty Scholarship
The State is undergoing a crisis of legitimacy owing to its inability to cope with novel problems of weapons proliferation, transnational threats including climate change, a fragile global financial infrastructure, cultural influences carried by electronic communications, and an undemocratic regime of human rights law. These fatal inadequacies are summoning forth a new constitutional order, the latest in a series of century-spanning archetypal regimes that have arisen since the Renaissance and the collapse of feudalism. A backlash against the harbingers of this new order, however, is crippling the development of those modes of action that are required to deal with the …
Reforming Campaign Finance Reform: The Future Of Public Financing, Richard Briffault
Reforming Campaign Finance Reform: The Future Of Public Financing, Richard Briffault
Faculty Scholarship
In his Seventh Annual Message to Congress on December 3, 1907, President Theodore Roosevelt proposed what he acknowledged was a “very radical measure”: public funding of election campaigns. Roosevelt had previously urged a federal campaign disclosure law and restrictions on corporate contributions, and Congress had adopted a corporate contribution ban earlier that year. But Roosevelt warned that disclosure and contribution limits alone would not be enough to truly reform campaign finance. “[L]aws of this kind,” that is, regulations of private campaign money, “from their very nature are difficult of enforcement,” Roosevelt observed. They posed the “danger” they would be “obeyed …
Bridging The Safe Drinking Water Gap For California’S Rural Poor, Camille Pannu
Bridging The Safe Drinking Water Gap For California’S Rural Poor, Camille Pannu
Faculty Scholarship
Spurred by decades of inaction and continued exposure to unsafe drinking water, community leaders from California’s disadvantaged communities (DACs) advocated for the creation of a human right to water under state law. Shortly thereafter, the California Legislature put forward a bond to finance much needed water infrastructure improvements and drought relief interventions across the state. Voters approved the $7.45 billion bond, which reserved millions of dollars of funding for DACs with persistent water quality problems. In setting aside those funds, the Legislature acknowledged that decades of disinvestment in rural, disadvantaged communities had created severe water contamination, limited water access, and …
Learned Hand On Statutory Interpretation: Theory And Practice, Thomas W. Merrill
Learned Hand On Statutory Interpretation: Theory And Practice, Thomas W. Merrill
Faculty Scholarship
It is a great honor to take part in the celebration of the Second Circuit’s 125th anniversary and in particular to present the Hands Lecture. The Second Circuit in the 1930s and 1940s came to be called the “Hand Court,” and during those years it established its reputation as the most admired of the U.S. circuit courts of appeals. It was called the Hand Court because two of its judges, who often formed the majority on three-judge panels, bore the surname Hand. They were cousins. Augustus Hand was a few years older than Learned Hand but was appointed to the …
The Administrative Threat To Civil Liberties, Philip A. Hamburger
The Administrative Threat To Civil Liberties, Philip A. Hamburger
Faculty Scholarship
Administrative power is the greatest threat to civil liberties in our era. Traditionally, the most systematic threats to civil liberties came in attacks on particular groups, and this remains a problem. But increasingly, there are also broader threats, which affect the civil liberties of all Americans, and administrative power is the primary example of this broad sort of danger. No single development in our legal system deprives more Americans of more constitutional rights. It is therefore not an exaggeration to say that it is our greatest threat to civil liberties.
Whose Lands? Which Public? The Shape Of Public-Lands Law And Trump's National Monument Proclamations, Jedediah S. Purdy
Whose Lands? Which Public? The Shape Of Public-Lands Law And Trump's National Monument Proclamations, Jedediah S. Purdy
Faculty Scholarship
President Trump issued a proclamation in December 2017 purporting to remove two million acres in southern Utah from national monument status, radically shrinking the Grand-Staircase Escalante National Monument and splitting the Bears Ears National Monument into two residual protected areas. Whether the President has the power to revise or revoke existing monuments under the Antiquities Act, which creates the national monument system, is a new question of law for a 112-year-old statute that has been used by Presidents from Theodore Roosevelt to Barack Obama to protect roughly fifteen million acres of federal land and hundreds of millions of marine acres. …
Chevron On Stilts: A Response To Jonathan Siegel, Philip A. Hamburger
Chevron On Stilts: A Response To Jonathan Siegel, Philip A. Hamburger
Faculty Scholarship
Whither Chevron? For several years, some justices of the Supreme Court have been questioning Chevron deference, partly on the basis of my constitutional critique of it. It was inevitable that someone would stand up in defense of that doctrine, and I am glad to say that my estimable former colleague Jonathan Siegel has stepped up to the plate. But the defense of the indefensible is not easy.
Although the long-standing conventional critique of Chevron was that it violates the separation of powers and federalism, my criticism is that Chevron deference corrupts the judicial process. As adumbrated in my 2014 …
Foreword, George A. Bermann, Anu Bradford
Foreword, George A. Bermann, Anu Bradford
Faculty Scholarship
European Union ("EU") law is no more immune than any other functioning body of law to technological innovation, and the European institutions need to adapt to such change. EU law has done so in a wide variety of ways, only a sampling of which can be presented in this issue of the Columbia Journal of European Law that we are honored to introduce. The Journal's commission of this Special Issue evidences its keen awareness of both the promises and challenges that technological change presents to Europe and its legal institutions.
The Model International Mobility Convention, Michael W. Doyle
The Model International Mobility Convention, Michael W. Doyle
Faculty Scholarship
People are as mobile as they ever were in our globalized world. Yet the movement of people across borders lacks global regulation, leaving many people unprotected in irregular and dire situations and some States concerned that their borders have become irrelevant. And international mobility – the movement of individuals across borders for any length of time as visitors, students, tourists, labor migrants, entrepreneurs, long-term residents, family members, asylum seekers, or refugees – has no common definition or legal framework.
Text Over Intent And The Demise Of Legislative History, Thomas W. Merrill, Michael S. Paulsen, Saikrishna Prakash, Lawrence B. Solum, Sandra Segal Ikuta
Text Over Intent And The Demise Of Legislative History, Thomas W. Merrill, Michael S. Paulsen, Saikrishna Prakash, Lawrence B. Solum, Sandra Segal Ikuta
Faculty Scholarship
The following is the transcript of a 2016 Federalist Society panel entitled: Text Over Intent and the Demise of Legislative History. The panel originally occurred on November 17, 2016 during the National Lawyers Convention in Washington, D.C. The participants were: Prof. Thomas W. Merrill, Charles Evans Hughes Professor of Law, Columbia Law School; Prof. Michael S. Paulsen, Distinguished University Chair and Professor, University of St. Thomas School of Law; Prof. Saikrishna Prakash, James Monroe Distinguished Professor of Law, University of Virginia School of Law; Prof. Lawrence B. Solum, Carmack Waterhouse Professor of Law, Georgetown University Law Center. The moderator was …
Impeachment: A Handbook, Philip C. Bobbitt
Impeachment: A Handbook, Philip C. Bobbitt
Faculty Scholarship
Charles Black’s Impeachment: A Handbook, first published in 1974 at the height of the Watergate crisis, has become the authoritative guide on the subject of presidential impeachment. In September, the Yale University Press published a new edition of the classic handbook, incorporating a new preface and new material by constitutional theorist Philip Bobbitt. Bobbitt’s contribution to the new edition appears in the Essay that follows.
Because Professor Black’s original text had no accompanying notes, the publisher decided to continue this format in the new print edition. In this re-publication, the Journal worked with Bobbitt to present his chapters with …
The Administrative Evasion Of Procedural Rights, Philip A. Hamburger
The Administrative Evasion Of Procedural Rights, Philip A. Hamburger
Faculty Scholarship
Administrative power does profound harm to civil liberties, and nowhere is this clearer than in the administrative evasion of procedural rights. All administrative power is a mode of evasion, but the evasion of juries, due process, and other procedural rights is especially interesting as it most concretely reveals the administrative threat to civil liberties.
In contemporary doctrine, due process and most other procedural rights are understood mainly as standards for adjudication in the courts. Traditionally, however, they were understood, at least as much, to bar adjudication outside the courts. That is, they were understood to block evasions of the courts …
A Private Law Court In A Public Law System, Jamal Greene
A Private Law Court In A Public Law System, Jamal Greene
Faculty Scholarship
The U.S. Supreme Court’s approach to human rights is a global outlier. In conceiving of rights adjudication in categorical terms rather than embracing proportionality analysis, the Court limits its ability to make the kinds of qualitative judgments about rights application required to adjudicate claims of disparate impact, social and economic rights, and horizontal effects, among others. This approach, derivative of a private-law model of dispute resolution, sits in tension with the rights claims typical of a pluralistic jurisdiction with a mature rights culture, in which litigants more often disagree, reasonably, about the scope of rights rather than deny that others …
Citizens Of The State, Maeve Glass
Citizens Of The State, Maeve Glass
Faculty Scholarship
According to conventional wisdom, state citizenship emerged out of the localism of early America and gave way to national citizenship with the ratification of the Fourteenth Amendment. This Article offers a different account of state citizenship and, with it, new resources for analyzing the Constitution. It argues that far from a primordial category that receded into irrelevance, state citizenship provided a crucial strategic tool in America’s antislavery movement, as abolitionist lawyers used the label of state citizenship to build a coalition with white elites by reframing the issue of slavery from the rights of a black person to the sovereignty …
The Wealth Gap And The Racial Disparities In The Startup Ecosystem, Lynnise E. Pantin
The Wealth Gap And The Racial Disparities In The Startup Ecosystem, Lynnise E. Pantin
Faculty Scholarship
Although much attention has been given to structural inequality as it manifests in the criminal justice context, little has been said about economic inequality as it relates to the startup ecosystem. This Article details how the historic creation of the wealth gap affects entrepreneurship, highlighting how the wealth gap adversely impacts entrepreneurs of color. Entrepreneurship is a compelling solution to wealth inequality, but wealth inequality can be an impediment to success in entrepreneurship. This Article explains how the United States’ history of bolstering wealth creation for some, while inhibiting wealth creation for people of color, matters for understanding the startup …
The Legacy Of Civil Rights And The Opportunity For Transactional Law Clinics, Lynnise E. Pantin
The Legacy Of Civil Rights And The Opportunity For Transactional Law Clinics, Lynnise E. Pantin
Faculty Scholarship
At the end of the historic march from Selma to Montgomery in 1965, Reverend Dr. Martin Luther King Jr. famously paraphrased abolitionist and Unitarian minister Theodore Parker stating, “the arc of the moral universe is long, but it bends towards justice.” The implication of the phrase is that the social justice goals of the Civil Rights Movement would eventually be achieved. His prayer was that servants of justice would be rewarded in due time. In other words, that the goals of the Civil Rights Movement would be achievable at some point in the future. President Obama resurrected the phrase throughout …
Patterns Of Climate Change Litigation During Trump Era, Michael B. Gerrard, Edward Mctiernan
Patterns Of Climate Change Litigation During Trump Era, Michael B. Gerrard, Edward Mctiernan
Faculty Scholarship
Litigation about climate change took off in the early 2000s. Its focus has varied with the occupant of the White House. Under George W. Bush, most suits were brought by environmental groups and blue states, frustrated by the lack of federal action, seeking to push regulations or impede fossil fuel projects. Under Barack Obama, climate litigation was mostly industry and red states seeking to block regulations. And now under Donald Trump, it is largely about environmental groups and blue states trying to preserve the rules adopted under President Obama, and to seek novel remedies to get around federal hostility to …
New York Environmental Legislation In 2017, Michael B. Gerrard, Edward Mctiernan
New York Environmental Legislation In 2017, Michael B. Gerrard, Edward Mctiernan
Faculty Scholarship
In 2017, New York State enacted multiple laws that tackle aspects of two major environmental issues facing the state: protecting water quality and advancing the state’s clean energy goals. In addition, Governor Andrew Cuomo signed laws concerning oil tankers on the Hudson, elephant welfare, food waste, and lead paint. He also approved a moratorium barring New York City’s plastic bag fee from taking effect. This annual survey reports on these developments and other environmental laws enacted in 2017.
Too Big To Supervise: The Rise Of Financial Conglomerates And The Decline Of Discretionary Oversight In Banking, Lev Menand
Faculty Scholarship
The authority of government officials to define and eliminate “unsafe and unsound” banking practices is one of the oldest and broadest powers in U.S. banking law. But this authority has been neglected in the recent literature, in part because of a movement in the 1990s to convert many supervisory judgments about “safety and soundness” into bright-line rules. This movement did not entirely do away with discretionary oversight, but it refocused supervisors on compliance, risk management, and governance – in other words, on internal bank processes.
Drawing on the rules versus standards debate, this Article develops a taxonomy for parsing the …
Women Of Color And Health: Issues And Solutions, June Cross, Nia Weeks, Kristen Underhill, Chloe Bootstaylor
Women Of Color And Health: Issues And Solutions, June Cross, Nia Weeks, Kristen Underhill, Chloe Bootstaylor
Faculty Scholarship
Chloe Bootstaylor: Welcome to our second panel. This panel focuses on women of color in health, issues, and solutions. The session is inspired by Professor June Cross of the Columbia School of Journalism and her recent film, Wilhemina’s War, which follows the story of Wilhemina Dixon and depicts the obstacles that Americans with HIV/AIDS face in accessing not only adequate healthcare but also financial, infrastructural, and social support in their communities.
This panel will consist of Professor Underhill and Nia Weeks. June Cross will join us a little later on. We will start with a clip from her film, …
Trauma, Depression, And Burnout In The Human Rights Field: Identifying Barriers And Pathways To Resilient Advocacy, Sarah Knuckey, Margaret Satterthwaite, Adam Brown
Trauma, Depression, And Burnout In The Human Rights Field: Identifying Barriers And Pathways To Resilient Advocacy, Sarah Knuckey, Margaret Satterthwaite, Adam Brown
Faculty Scholarship
Human rights advocates often confront trauma and stress in their work. They are exposed to testimony about heinous abuses; work in insecure locations; visit physical sites of abuse; review forensic, photographic, and video evidence; directly witness abuses; experience threats; and can also suffer detention, be attacked, or be tortured themselves. Such exposure risks adversely impacting the wellbeing and mental health of advocates. While the human rights field is diverse and work varies widely, most – if not all – advocates are likely directly or indirectly exposed to potentially traumatic events or material in the course of their work. The degree …
Copyright As Market Prospect, Shyamkrishna Balganesh
Copyright As Market Prospect, Shyamkrishna Balganesh
Faculty Scholarship
For many decades now, copyright jurisprudence and scholarship have looked to the common law of torts – principally trespass and negligence – in order to understand copyright’s structure of entitlement and liability. This focus on property – and harm-based torts – has altogether ignored an area of tort law with significant import for our understanding of copyright law: tortious interference with a prospective economic advantage. This Article develops an understanding of copyright law using tortious interference with a prospect as a homology. Tortious interference with a prospect allows a plaintiff to recover when a defendant’s volitional actions interfere with a …
The Supreme Court, Judicial Elections, And Dark Money, Richard Briffault
The Supreme Court, Judicial Elections, And Dark Money, Richard Briffault
Faculty Scholarship
Judges, even when popularly elected, are not representatives; they are not agents for their voters, nor should they take voter preferences into account in adjudicating cases. However, popularly elected judges are representatives for some election law purposes. Unlike other elected officials, judges are not politicians. But judges are policy-makers. Judicial elections are subject to the same constitutional doctrines that govern voting on legislators, executives, and ballot propositions. Except when they are not. The same First Amendment doctrine that protects campaign speech in legislative, executive, and ballot proposition elections applies to campaign speech in judicial elections – but not in quite …
Interpreting An Unamendable Text, Thomas W. Merrill
Interpreting An Unamendable Text, Thomas W. Merrill
Faculty Scholarship
Many of the most important legal texts in the United States are highly unamendable. This applies not only to the Constitution, which has not been amended in over forty years, but also to many framework statutes, like the Administrative Procedure Act and the Sherman Antitrust Act. The problem is becoming increasingly severe, as political polarization makes amendment of these texts even more unlikely. This Article considers how interpreters should respond to highly unamendable texts. Unamendable texts have a number of pathologies, such as excluding the people and their representatives from any direct participation in legal change. They also pose an …
The State's Role In The Regulation And Provision Of Legal Services In South Africa And The United States: Supporting, Nudging Or Interfering?, Helen Kruuse, Philip Genty
The State's Role In The Regulation And Provision Of Legal Services In South Africa And The United States: Supporting, Nudging Or Interfering?, Helen Kruuse, Philip Genty
Faculty Scholarship
An independent legal profession is said to be “the bulwark of a free and democratic society.” It is also said that a high measure of independence of mind and action by legal actors is necessary for the maintenance of the rule of law. However, too often, there is the allegation (within the sociological literature in particular) that the legal profession has used the concepts of independence and the rule of law as a shield or cuirass rather than as a sword. The image of lawyers representing unpopular clients fearlessly and advocating on behalf of unpopular causes, so as to uphold …
Free Expression On Campus: Mitigating The Costs Of Contentious Speakers, Suzanne B. Goldberg
Free Expression On Campus: Mitigating The Costs Of Contentious Speakers, Suzanne B. Goldberg
Faculty Scholarship
“If you’re afraid to offend, you can’t be honest.”
“If you offend me, I can’t hear what you’re trying to tell me.”
—overheard on campus
The debate over how colleges and universities should respond to contentious guest speakers on campus is not a new one. A quick look back to the early 1990s, among other times, shows commentators squaring off much as they do today about the tensions between protecting free expression and ensuring meaningful equality.
Perhaps not surprisingly, the issues that contested speakers address are also much the same as they have been for several decades – government action …
Green Finance: Leveraging Investment For Environmental Protection, Michael B. Gerrard, Charles E. Di Leva, John Rousakis, Douglas Sims
Green Finance: Leveraging Investment For Environmental Protection, Michael B. Gerrard, Charles E. Di Leva, John Rousakis, Douglas Sims
Faculty Scholarship
Some political narratives describe the relationship between environmental protection and economic growth as two inherently incompatible goals. As the global community turns its attention to implementing international climate agreements, this story is ceding ground to the realization that the economy must facilitate a transition to sustainability. With limited government funding available, private investments offer an opportunity to dramatically increase and leverage funding to address daunting environmental problems. Green financing will play a critical role in the shift to a green economy.
Governments, intergovernmental organizations, financial institutions, corporations, and nongovernmental organizations (NGOs) are examining green financing mechanisms in earnest. Financial institutions …
The Fortification Of Inequality: Constitutional Doctrine And The Political Economy, Kate Andrias
The Fortification Of Inequality: Constitutional Doctrine And The Political Economy, Kate Andrias
Faculty Scholarship
As Parts I and II of this Essay elaborate, the examination yields three observations of relevance to constitutional law more generally: First, judge-made constitutional doctrine, though by no means the primary cause of rising inequality, has played an important role in reinforcing and exacerbating it. Judges have acquiesced to legislatively structured economic inequality, while also restricting the ability of legislatures to remedy it. Second, while economic inequality has become a cause célèbre only in the last few years, much of the constitutional doctrine that has contributed to its flourishing is longstanding. Moreover, for several decades, even the Court’s more liberal …