Law Commons^™

Building A Cleaner, More Resilient Energy System In Cuba: Opportunities And Challenges, Korey Silverman-Roati, Daniel Whittle, Romany M. Webb, Jeffrey P. Fralick, Lila Harmar

Sabin Center for Climate Change Law

Cuba’s energy sector is at a crossroads. The country’s mostly fossil fuel-fired energy system faces a number of longstanding and serious challenges, including breakdowns at aging power plants, decreasing fuel imports and fuel shortages, and the growing threat of climate change-related disruptions. In recent years, Cuba has seen frequent electric blackouts and brownouts that have affected residents, businesses, and government institutions island wide.

Compounding these problems, Cuba is facing a severe economic crisis. In 2022, year-on-year inflation was 39% (down from 77% in 2021). While inflation is estimated to have dropped to 30% in 2023, the price of food increased …

Can Contract Emancipate? Contract Theory And The Law Of Work, Hanoch Dagan, Michael A. Heller

Faculty Scholarship

Contract and employment law have grown apart. Long ago, each side gave up on the other. In this Article, we re-unite them to the betterment of both. In brief, we demonstrate the emancipatory potential of contract for the law of work.

Today, the dominant contract theories assume a widget transaction between substantively equal parties. If this were an accurate description of what contract is, then contract law would be right to expel workers. Worker protections would indeed be better regulated by – and relegated to – employment and labor law. But contract law is not what contract theorists claim. Neither …

Investor-State Dispute Prevention: A Critical Reflection, Lise Johnson, Lisa E. Sachs, Ella Merrill

Columbia Center on Sustainable Investment Staff Publications

With the rise of treaty-based investor-state dispute settlement (“ISDS”) which has taken place over the last two decades, a number of governments have adopted varying approaches to avoid those arbitration cases. Countries including Bosnia and Herzegovina, Colombia, Mexico, Mongolia, and Peru have pursued such initiatives, often with the support of intergovernmental organizations such as the United Nations Convention on Trade and Development (“UNCTAD”) and the World Bank.

In the context of discussions on ISDS reform taking place at the United Nations Commission on International Trade Law (“UNCITRAL”), some states have identified development and implementation of such ISDS-avoidance strategies and tools …

Carbon Accounting By Public And Private Financial Institutions: Can We Be Sure Climate Finance Is Leading To Emissions Reductions?, Martin Dietrich Brauch, Emily Spittle

Columbia Center on Sustainable Investment Staff Publications

To further and fully understand how to plan for the decarbonization of mining value chains, we need better data on carbon and other greenhouse gas (GHG) emissions. However, neither consumers, corporates, or financial institutions know the embodied emissions in the products they produce or sell. While methods like life-cycle analysis and environmental product declarations exist, none use a verifiable, comparable, or widely adopted emissions reporting framework capable of sending supply chain signals.

To truly reform material supply chains, new solutions for markets, capital, and policy are required. COMET (the Coalition on Materials Emissions Transparency) – an alliance launched at Davos …

Five Years After The Adoption Of The Paris Agreement, Are Climate Change Considerations Reflected In Mining Contracts?, Tehtena Mebratu-Tsegaye, Perrine Toledano, Martin Dietrich Brauch, Mara Greenberg

Columbia Center on Sustainable Investment Staff Publications

Domestic laws are the ideal legal instrument to regulate the mining sector’s contribution to climate change mitigation and adaptation. Even so, as a stop-gap-measure, governments may consider updating model mining development agreements (MMDAs) or negotiating climate­-related contractual provisions. This CCSI paper explores whether governments are using, and how they can use, investor–state mining contracts to advance climate goals. We synthesize our findings and recommendations for six categories of provisions: integrating renewable energy into mining products, reducing deforestation, requiring a climate risk assessment and community vulnerability assessment, regulating water use, requiring tailings dam design justifications, and integrating climate risks into closure …

Responsible Coffee Sourcing: Towards A Living Income For Producers, Kaitlin Y. Cordes, Margaret Sagan, Solina Kennedy

Columbia Center on Sustainable Investment Staff Publications

Coffee, one of the world’s most popular beverages, provides livelihoods for at least 60 million people across dozens of countries. Promoting the long-term health, wellbeing, and environmental sustainability of the much beloved coffee sector should be a clear priority.

CCSI has continued its work on coffee sustainability with a 2021 report: “Responsible Coffee Sourcing: Towards a Living Income for Producers.” The report focuses on a critical but under-examined topic: the impact of coffee company sourcing practices on coffee producer and farmworker well-being. The report, commissioned by a long-term investment manager, analyzes the sourcing practices of ten large coffee roasters and …

Comparison Between The Ipcc Reporting Framework And Country Practice, Jiarui Chen, Martin Dietrich Brauch

Columbia Center on Sustainable Investment Staff Publications

To further and fully understand how to plan for the decarbonization of mining value chains, we need better data on carbon and other greenhouse gas (GHG) emissions. However, neither consumers, corporates, or financial institutions know the embodied emissions in the products they produce or sell. While methods like life-cycle analysis and environmental product declarations exist, none use a verifiable, comparable, or widely adopted emissions reporting framework capable of sending supply chain signals.

To truly reform material supply chains, new solutions for markets, capital, and policy are required. COMET (the Coalition on Materials Emissions Transparency) – an alliance launched at Davos …

Guide On Incentives For Responsible Investment In Agriculture And Food Systems, Anna Bulman, Kaitlin Y. Cordes, Ladan Mehranvar, Ella Merrill, Yannick Fiedler

Columbia Center on Sustainable Investment Staff Publications

To support implementation of the Principles for Responsible Investment in Agriculture and Food Systems (CFS RAI), CCSI has developed resources for governments and other stakeholders in partnership with the Food and Agriculture Organisation of the United Nations (FAO).

This work includes an online course on creating an enabling environment for responsible investment in agriculture and food systems. The course is freely available, accessible online and available for download. Part I highlights the features and key players of an enabling environment that promotes responsible investment in agriculture and food security. Part II addresses multi-stakeholder engagement in the design of legal and …

The Case For A Climate-Smart Update Of The Africa Mining Vision, Perrine Toledano, Martin Dietrich Brauch, Karan Bhulwaka, Kojo Busia

Columbia Center on Sustainable Investment Staff Publications

The 2009 Africa Mining Vision (AMV) provides guidance for the industrialization of African countries by leveraging their mining sector. However, the global context has changed since its adoption. As a result, it does not include guidance on how governments should embrace the climate change agenda as an opportunity for better and further industrialization, deeper linkages, and sustainable development.

There are many ways to look at the implications of international climate change policy for Africa, including through the increased extraction of minerals needed in clean energy application and the greening of mines. The localization of global value chains – induced by …

Comments To The Draft Working Group Iii Workplan, Columbia Center On Sustainable Investment, International Institute For Environment And Development, International Institute For Sustainable Development

Columbia Center on Sustainable Investment Staff Publications

The United Nations Commission on International Trade Law (UNCITRAL) is currently working on how to reform international investment treaties, focusing in particular on those treaties’ provisions enabling investors to sue governments in international arbitration. As an observer organization in this process, CCSI has emphasized that in the context of investor-state dispute settlement (ISDS) reform, it is important to first consider what it is that investment treaties aim to achieve, and only then to consider what form(s) of dispute settlement will best advance those objectives. This means not only looking at reform of the existing ISDS mechanism, but also alternatives to …

Transparency For Whom? Grounding Land Investment Transparency In The Needs Of Local Actors, Sam Szoke-Burke

Columbia Center on Sustainable Investment Staff Publications

Transparency is often seen as a means of improving governance and accountability of investment, but its potential to do so is hindered by vague definitions and failures to focus on the needs of key local actors.

In this new report focusing on agribusiness, forestry, and renewable energy projects (“land investments”), CCSI grounds transparency in the needs of project-affected communities and other local actors. Transparency efforts that seek to inform and empower communities can also help governments, companies, and other actors to more effectively manage operational risk linked to social conflict.

Troublingly, the report finds that:

• Disclosures around land investments continue …

Transparency Of Land-Based Investments: Cameroon Country Snapshot, Sam Szoke-Burke, Samuel Nguiffo, Stella Tchoukep

Columbia Center on Sustainable Investment Staff Publications

Despite a recent transparency law and participation in transparency initiatives, Cameroon’s investment environment remains plagued by poor transparency.

In a new report focusing on agribusiness projects in Cameroon, CCSI and the Centre pour l’Environnement et le Développement (CED) find that:

• Communities continue to be excluded from decision-making around investments.
• The government pursues a top-down approach to concession allocation and remains reluctant to recognize all legitimate tenure rights.
• The government faces threats to its legitimacy as the grievances of citizens and investors alike lead to the barring of roads by communities and investor withdrawals.

CCSI and CED therefore call for:

• A …

Should The European Union Fix, Leave Or Kill The Energy Charter Treaty?, Martin Dietrich Brauch

Columbia Center on Sustainable Investment Staff Publications

In the early 1990s, the European Economic Community – the predecessor of the European Union (EU) – spearheaded an initiative to promote international cooperation in the energy sector, particularly with post-Soviet States in Eastern Europe and Central Asia. Out of this process the Energy Charter Treaty (ECT) was born in 1994. Going much beyond international cooperation, the treaty allows foreign investors in the energy sector to sue their host States in international arbitral tribunals and claim monetary compensation when policy measures and other State action affect their interests.

Fast-forward to 2021. With 135 known cases initiated to date, the ECT’s …

Nigeria’S Petroleum Industry Bill: A Missed Opportunity To Prepare For The Zero-Carbon Future, Solina Kennedy, Martin Dietrich Brauch, Perrine Toledano, Tehtena Mebratu-Tsegaye

Columbia Center on Sustainable Investment Staff Publications

With Nigeria’s National Assembly debating the proposed Petroleum Industry Bill (PIB) in the first quarter of 2021 – after nearly two decades of attempted reform of the country’s petroleum sector – Nigeria has a unique opportunity to rethink the role of the oil and gas industry in Nigeria’s economy and build out the country’s energy sector and economic capacity for the long term. CCSI’s report Equipping the Nigerian National Petroleum Corporation (NNPC) for the Low-Carbon Transition, released before the PIB was publicized, advances suggestions on how to do so. The PIB takes notable steps toward much-needed reform of NNPC’s …

Establishing State Responsibility In Mitigating Climate Change Under Customary International Law, Vanessa S.W. Tsang

LL.M. Essays & Theses

As acknowledged in the Paris Agreement’s Preamble, climate change is a “common concern of humankind.” To tackle the anthropogenic greenhouse gases (GHGs) at source, State governments played a pivotal role in implementing climate change policies. It thus justifies the approach of looking into the solutions to climate change from a state responsibility perspective. As mentioned by James Crawford, “[a]ny system of law must address the responsibility of its subjects for breaches of their obligations.” The finding of state responsibility in mitigating climate change will complement the treaty-based climate change regime, providing grounds for climate change litigations and policy formulation.

More …

Lessons And Opportunities For Negotiation Teachers Following The Covid-19 Pandemic, Ana Lenard

LL.M. Essays & Theses

In 2020-2021, and resulting from the Covid-19 pandemic, I taught and studied university negotiation courses online. In this essay I reflect on my experiences of teaching and learning online, ground them in pedagogical research, and distil key lessons and opportunities for negotiation teachers across three topics (creating inclusive classrooms, the role of technology, and equipping our students to meet the demands of the modern world). Teaching online has led to a collective upskilling in our understanding of our students, of what matters in life, and of how technology can enhance our teaching. We have agency in our classrooms to help …

The Impact Of Particular Provisions Of The 2017 Tax Cuts And Jobs Act On The United States Economy Amidst The Covid-19 Pandemic, Hillary Obinna Maduka

LL.M. Essays & Theses

The Tax Cuts and Jobs Act is the most significant overhaul of the U.S. federal tax system in the last two decades. This paper seeks to discuss some of its most significant provisions and examine their overall impact on the U.S. economy, especially throughout the ongoing coronavirus pandemic.

This paper begins by undertaking an overview of the legislative history of the Act and then proceeds to discuss three provisions of the Tax Cuts and Jobs Acts which have had a tremendous impact on the U.S. economy by altering some major provisions of the United States Internal Revenue Code of 1986. …

Constructing Countervailing Power: Law And Organizing In An Era Of Political Inequality, Kate Andrias

Faculty Scholarship

This Article proposes an innovative approach to remedying the crisis of political inequality: using law to facilitate organizing by the poor and working class, not only as workers, but also as tenants, debtors, welfare beneficiaries, and others. The piece draws on the social-movements literature, and the successes and failures of labor law, to show how law can supplement the deficient regimes of campaign finance and lobbying reform and enable lower-income groups to build organizations capable of countervailing the political power of the wealthy. As such, the Article offers a new direction forward for the public-law literature on political power and …

Ideology And Institutions In The Evolution Of Capital, Katharina Pistor

Faculty Scholarship

In Capital and Ideology, Thomas Piketty poses the intriguing thesis that ideology, or ideas about how society should be governed, is a powerful determinant for how society will be governed-as long as we take advantage of historical switch points. In this review essay I challenge this thesis by pointing out that many powerful ideas have run aground because of countervailing institutional arrangements. Oftentimes, they are leftovers from earlier times that precede the change and are now strategically employed for reconstituting private wealth. Clearly, ideology and institutions are deeply intertwined. I credit Piketty for putting ideology on the map of …

A Major Simplification Of The Oecd’S Pillar 1 Proposal, Michael J. Graetz

Faculty Scholarship

In this report, Graetz suggests major modifications to the OECD’s pillar 1 blueprint proposal to create a new taxing right for multinational digital income and some product sales that would greatly simplify the proposal. The modifications rely on readily available existing financial information and would achieve certainty in the application of pillar 1, while adhering to its fundamental structure and policies.

The Uncertain Future Of Administrative Law, Jeremy K. Kessler, Charles F. Sabel

Faculty Scholarship

A volatile series of presidential transitions has only intensified the century-long conflict between progressive defenders and conservative critics of the administrative state. Yet neither side has adequately confronted the fact that the growth of uncertainty and the corresponding spread of guidance – a kind of provisional “rule” that invites its own revision – mark a break in the development of the administrative state as significant as the rise of notice-and-comment rulemaking in the 1960s and 1970s. Whereas rulemaking corrected social shortsightedness by enlisting science in the service of lawful administration, guidance acknowledges that both science and law are in need …

Obsolescence: The Intractable Production Problem In Contract Law, Alan Schwartz, Robert E. Scott

Faculty Scholarship

Contract 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's 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 …

Comment On Andy Warhol Found. For The Visual Arts, Inc. V. Goldsmith, 992 F.3d 99 (2d Cir. 2021), Jane C. Ginsburg

Faculty Scholarship

The Second Circuit’s decision in Andy Warhol Foundation v. Goldsmith retreats both from its prior caselaw’s generous characterization of artistic reuse as “transformative,” and from the outcome-determinacy of a finding of “transformativeness.” The decision suggests both that courts may be applying a more critical understanding of what “transforms” copied content, and that courts may be reforming “transformative use” to reinvigorate the other statutory factors, particularly the inquiry into the impact of the use on the potential markets for or value of the copied work. The court also provided an important explanation of copyrightable authorship in photographs.

In addition to analyzing …

Towards A Law Of Inclusive Planning: A Response To “Fair Housing For A Non-Sexist City”, Olatunde C.A. Johnson

Faculty Scholarship

Noah Kazis’s important article, Fair Housing for a Non-sexist City, shows how law shapes the contours of neighborhoods and embeds forms of inequality, and how fair housing law can provide a remedy. Kazis surfaces two dimensions of housing that generate inequality and that are sometimes invisible. Kazis highlights the role of planning and design rules – the seemingly identity-neutral zoning, code enforcement, and land-use decisions that act as a form of law. Kazis also reveals how gendered norms underlie those rules and policies. These aspects of Kazis’s project link to commentary on the often invisible, gendered norms that shape …

Restatements Of Statutory Law: The Curious Case Of The Restatement Of Copyright, Shyamkrishna Balganesh, Peter S. Menell

Faculty Scholarship

For nearly a century, the American Law Institute’s (ALI) Restatements of the Law have played an important role in the American legal system. And in all of this time, they refrained from restating areas of law dominated by a uniform statute despite the proliferation and growing importance of such statutes, especially at the federal level. This omission was deliberate and in recognition of the fundamentally different nature of the judicial role and of lawmaking in areas governed by detailed statutes compared to areas governed by the common law. Then in 2015, without much deliberation, the ALI embarked on the task …

The Right To Mental Health In Yemen, Waleed Alhariri, Amanda Mcnally, Sarah Knuckey

Faculty Scholarship

Mental health issues are all too common consequences of conflict and atrocity crimes, often causing upwards of one-quarter of the post-conflict, post-atrocity population to suffer from physical and mental sequelae that linger long after weapons have been silenced. After more than six years of ongoing conflict, Yemen’s already weak health care system is on the brink of collapse, and population resilience has been severely stressed by indiscriminate attacks, airstrikes, torture, food insecurity, unemployment, cholera, and now the COVID-19 pandemic. This paper examines Yemen’s responsibilities regarding the right to mental health and details the few actions the government has taken to …

The 100-Year Life And The New Family Law, Elizabeth S. Scott, Naomi Cahn

Faculty Scholarship

This draft book chapter, prepared as part of a symposium on The 100-Year Life by Linda Gratton and Andrew Scott, reflects on the future of family law in an era of longer lives. Our analysis leads us to conclude that the 100-year life is indeed likely to have an impact on the nature, scope, and definition of family law, but that families will continue to function as the primary setting for intimacy and for caregiving and caretaking, whatever form those families take. Further, the importance to both individual and social welfare of family support throughout life points to a need …

Re-Reading Chevron, Thomas W. Merrill

Faculty Scholarship

Though increasingly disfavored by the Supreme Court, Chevron remains central to administrative law doctrine. This Article suggests a way for the Court to reformulate the Chevron doctrine without overruling the Chevron decision. Through careful attention to the language of Chevron itself, the Court can honor the decision’s underlying value of harnessing comparative institutional advantage in judicial review, while setting aside a highly selective reading that unduly narrows judicial review. This re-reading would put the Chevron doctrine – and with it, an entire branch of administrative law – on firmer footing.

Mine The Gap: Using Racial Disparities To Expose And Eradicate Racism, James S. Liebman, Kayla C. Butler, Ian Buksunski

Faculty Scholarship

For decades, lawyers and legal scholars have disagreed over how much resource redistribution to expect from federal courts and Congress in satisfaction of the Fourteenth Amendment's promise of equal protection. Of particular importance to this debate and to the nation given its kaleidoscopic history of inequality, is the question of racial redistribution of resources. A key dimension of that question is whether to accept the Supreme Court's limitation of equal protection to public actors' disparate treatment of members of different races or instead demand constitutional remedies for the racially disparate impact of public action.

For a substantial segment of the …

Making America A Better Place For All: Sustainable Development Recommendations For The Biden Administration, John C. Dernbach, Scott E. Schang, Robert W. Adler, Karol Boudreaux, John Bouman, Claire Babineaux-Fontenot, Kimberly Brown, Mikhail Chester, Michael B. Gerrard, Stephen Herzenberg, Samuel Markolf, Corey Malone-Smolla, Jane Nelson, Uma Outka, Tony Pipa, Alexandra Phelan, Leroy Paddock, Jonathan D. Rosenbloom, William Snape, Anastasia Telesetsky, Gerald Torres, Elizabeth Ann Kronk Warner, Audra Wilson

Faculty Scholarship

In 2015, the United Nations Member States, including the United States, unanimously approved 17 Sustainable Development Goals (SDGs) to be achieved by 2030. The SDGs are nonbinding; each nation is to implement them based on its own priorities and circumstances. This Article argues that the SDGs are a critical normative framework the United States should use to improve human quality of life, freedom, and opportunity by integrating economic and social development with environmental protection. It collects the recommendations of 22 experts on steps that the Biden-Harris Administration should take now to advance each of the SDGs. It is part of …