Law Commons^™

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 …

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.

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 …

Memorandum On China’S Measures For Addressing Sea Level Change, Zhang Zhongmin

Sabin Center for Climate Change Law

This paper describes the current state of China’s recognition of sea level rise in the context of global climate change. The author analyzes official state documents addressing sea level rise, including the annual China Sea Level Communiqué, and compares them with local government initiatives and perspectives from non-governmental sources such as academia, NGOs and the general public. The paper concludes that, while China has taken many commendable steps towards addressing sea level rise, there are still considerable obstacles to be overcome. Finally, the author recommends that local governmental and non-governmental actors play a larger and better defined role. The author …

Assisted Migration: A Viable Conservation Strategy To Preserve The Biodiversity Of Threatened Island Nations?, Jessica A. Wentz

Sabin Center for Climate Change Law

Anthropogenic climate change poses a substantial threat to biodiversity. The IPCC estimates that 20-30% of species will face an increased risk of extinction if the average global temperature rises more than 1.5 to 2.5 degrees Celsius. Additional scientific studies indicate that 15-37% of species may become extinct by 2050 due to global warming, based on current emissions trajectories. Domestic and international strategies to manage this threat have traditionally focused on conservation and mitigation. In the last few years, however, policy makers have recognized that near-term climate impacts are inevitable and thus adaptation strategies are required to protect both humans and …

Domestic Mitigation Of Black Carbon From Diesel Emissions, Hannah Chang

Sabin Center for Climate Change Law

Black carbon, a component of soot and particulate matter, competes closely with methane as the largest anthropogenic contributor to global warming after carbon dioxide. Regulation of black carbon has been identified as an affordable, politically feasible, fast-action means to mitigate the warming temperatures caused by climate change. With an emphasis on domestic mitigation, this Article examines how emissions are controlled under the CAA and what EPA, states, and municipalities can do to mitigate black carbon emissions further.

Shopping For State Constitutions: Unequal Gift Clauses As Obstacles To Optimal State Encouragement Of Carbon Sequestration, Nicholas Houpt

Sabin Center for Climate Change Law

Carbon capture and sequestration technology (CCS) could drastically reduce CO2 emissions from coal-fired power plants, thereby mitigating climate change. CCS, however, faces a difficult barrier to market entry: liability for the technology’s many long-term risks. States would like to alleviate this long-term liability problem to capture CCS’s social benefits. Some state constitutions, however, have provisions called “gift clauses” that prohibit giving aid to private parties. This Note argues that some state constitutions’ gift clauses prevent indemnification of private CCS developers. As this Note’s fifty state survey shows, other state constitutions allow indemnification. This asymmetry in constitutionally-allowed financial encouragement results in …

Carbon Offshoring: The Legal And Regulatory Framework For Coal Exports, Daniel M. Firger, Robert Denicola, Katherine English, Daniel Raichel, Ross Wolfarth, Kennan Zhong

Sabin Center for Climate Change Law

This report examines the legal and regulatory framework for U.S. coal exports, focusing in particular on the significant improvements in railroad and port infrastructure that will be necessary in order to boost the volume of overseas coal shipments to the degree anticipated by recent industry projections. While existing railroads and ports have the capacity to handle current coal export volumes, much more infrastructure will be needed to meet surging foreign demand. A wide variety of new construction projects are under consideration to expand capacity and relieve congestion. These range from double-tracking existing Class I railroad rights of way to dredging …

Environmental And Energy Legislation In The 112th Congress, Michael B. Gerrard

Faculty Scholarship

When Barack Obama succeeded George W. Bush in January 2009, backed by solid majorities in both the House and the Senate, the country seemed poised for the first major environmental legislation since 1990, the year of the Oil Pollution Act and the 1990 Clean Air Act amendments. Under the leadership of Rep. Henry A. Waxman (D-CA) and Rep. Edward Markey (D-MA), the House passed a comprehensive climate change bill based on an economywide cap-and-trade system. The House also passed a bill to lift oil spill liability caps and adopt additional reforms in the wake of the Gulf of Mexico spill. …

Teaching Intrapersonal Intelligence As A Lawyering Skill: Introducing Values Systems Into The Environmental Law Syllabus, Michael Burger

Sabin Center for Climate Change Law

The ranges and types of problems with traditional law school curricula, pedagogies, and learning cultures are well-rehearsed, and have been framed, narrated, and analyzed in a number of prominent venues, along with suggested improvements and proposals for systemic reform. This Essay addresses one aspect of the ongoing and pervasive critique: the need to develop in law students the diverse intellectual competencies that the practice of law requires. Working within the framework of Professor Howard Gardner’s theory of multiple intelligences, I argue that intrapersonal intelligence and the self-reflexive analytic process it invokes are important tools in the practicing lawyer’s toolbox, and …

Measurement, Reporting & Verification Of Chinese Mitigation Commitments, Quiyan Zhao

Sabin Center for Climate Change Law

This paper discusses China's new transparency pledge – MRV as it relates to Chinese mitigation commitments – as laid out in the non-legal binding agreement reached at the United Nations Climate Change Conference in Copenhagen on December 18. 2009. Specifically, this paper compares China’s position on MRV with relevant mechanisms and requirements under the United Nations Framework Convention on Climate Change (UNFCCC), the Kyoto Protocol, the Bali Action Plan, and the Copenhagen Accord. Furthermore, this paper seeks to answer several questions pertinent to the progress and challenges of China’s MRV regime: Are China’s GHGs emissions measured continuously? Are there review …

Legal Implications For The U.S. In Transferring Ccs Technology To China, Amy Ward

Sabin Center for Climate Change Law

This paper addresses the legal and related political and economic implications for U.S. public and private sector investors, and U.S. CCS technological proprietors, in participating in CCS demonstration projects in China through the provision of investment and technology transfers.

What Happened In Iowa?, David Pozen

Faculty Scholarship

Reply to Nicole Mansker & Neal Devins, Do Judicial Elections Facilitate Popular Constitutionalism; Can They?, 111 Colum. L. Rev. Sidebar 27 (2011).

November 2, 2010 is the latest milestone in the evolution of state judicial elections from sleepy, sterile affairs into meaningful political contests. Following an aggressive ouster campaign, voters in Iowa removed three supreme court justices, including the chief justice, who had joined an opinion finding a right to same-sex marriage under the state constitution. Supporters of the campaign rallied around the mantra, “It’s we the people, not we the courts.” Voter turnout surged to unprecedented levels; the national …

Income Tax Discrimination: Still Stuck In The Labyrinth Of Impossibility, Michael J. Graetz, Alvin C. Warren

Faculty Scholarship

In previous articles, we have argued that European Court of Justice’s reliance on nondiscrimination as the basis for its decisions did not (and could not) satisfy commonly accepted tax policy norms, such as fairness, adminstrability, production of desired levels of revenues, avoidance of double taxation, fiscal policy goals, inter-nation fiscal equity, and so on. In addition, we argued that the Court cannot achieve consistent and coherent results by requiring nondiscrimination in both origin and destination countries for transactions involving the tax systems of more than one member state. We demonstrated that – in the absence of harmonized income tax bases …

Climate Change Litigation After Supreme Court Ruling In American Electric Power V. Connecticut, Mark Fulton, Michael B. Gerrard

Faculty Scholarship

On June 20, 2011 the U.S. Supreme Court issued its much-anticipated decision in American Electric Power v. Connecticut. This is the second climate change case to be decided by that court and the first to concern common law claims, where the plaintiffs claimed that the greenhouse gases (GHGs) from power plants constitute a common law nuisance, and asked the court to issue an injunction requiring the plants to reduce their emissions.

The Anticanon, Jamal Greene

Faculty Scholarship

Argument from the “anticanon,” the set of cases whose central propositions all legitimate decisions must refute, has become a persistent but curious feature of American constitutional law. These cases, Dred Scott v. Sandford, Plessy v. Ferguson, Lochner v. New York, and Korematsu v. United States, are consistently cited in Supreme Court opinions, in constitutional law casebooks, and at confirmation hearings as prime examples of weak constitutional analysis. Upon reflection, however, anticanonical cases do not involve unusually bad reasoning, nor are they uniquely morally repugnant. Rather, these cases are held out as examples for reasons external to conventional constitutional argument. This …

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 …

Two Challenges For Campaign Finance Disclosure After Citizens United And Doe V. Reed, Richard Briffault

Faculty Scholarship

Disclosure moved front and center on the campaign finance stage in 2010. Indeed, the year just passed witnessed the emergence of not one, but two significant challenges for our disclosure laws.

2010 began with new concerns about the burdens disclosure can place on the rights of political participation and association protected by the First Amendment, with the possibility that the Supreme Court – which had become increasingly skeptical about campaign finance regulation since Chief Justice Roberts and Justice Alito joined the Court – might impose new restrictions on disclosure.

Taxation Of Financial Products: Options For Fundamental Reform, Alex Raskolnikov

Faculty Scholarship

The following is testimony to the joint hearing of the House of Representatives Committee on Ways and Means and the Senate Committee on Finance. The testimony discusses three benchmarks for evaluating the taxation of capital income in general and financial instruments in particular, summarizes three broad-based approaches to reforming the tax treatment of financial products, evaluates the impact of other fundamental reforms on the urgency of reforming the taxation of derivatives, and urges Congress to encourage the IRS to make detailed tax return data available for empirical research of revenue costs and other losses arising from derivatives-based tax planning.

Climate Change And The Wto: Expected Battlegrounds, Surprising Battles, Daniel M. Firger, Michael B. Gerrard

Faculty Scholarship

This article examines the issue of climate change policy and international trade law. While conventional wisdom may have predicted that conflicts in trade law would emerge through climate-related protectionist measures, such as carbon tariffs on imports from countries with less stringent controls on greenhouse gas emissions, the authors point out that government support for climate-friendly technologies has in fact emerged as the primary battleground. The authors examine two recent disputes—between the United States and China and between Japan and Canada – over green subsidies and their implications for the future of clean energy.

Reading Charles Black Writing: "The Lawfulness Of The Segregation Decisions" Revisited, Kendall Thomas

Faculty Scholarship

The year 2010 marked the fiftieth anniversary of the publication of Charles L. Black, Jr.'s "The Lawfulness of the Segregation Decisions." Professor Black's magisterial essay on the Supreme Court's 1954-1955 decisions in Brown v. Board of Education and its companion cases is, by any account, a foundational text in the scholarly literature on race and law in the United States. Black's short but searing defense of Brown introduced ideas and arguments about race, about law, and about the law of race that transformed the field. I can think of no better way to celebrate this inaugural issue of the Columbia …

Discrimination By Comparison, Suzanne B. Goldberg

Faculty Scholarship

Contemporary discrimination law is in crisis, both methodologically and conceptually. The crisis arises in large part from the judiciary's dependence on comparators – those who are like a discrimination claimant but for the protected characteristic – as a favored heuristic for observing discrimination. The profound mismatch of the comparator methodology with current understandings of identity discrimination and the realities of the modern workplace has nearly depleted discrimination jurisprudence and theory. Even in run-of-the-mill cases, comparators often cannot be found, particularly in today's mobile, knowledge-based economy. This difficulty is amplified for complex claims, which rest on thicker understandings of discrimination developed …

Can Joe The Plumber Support Redistribution? Law, Social Preferences, And Sustainable Policy Design, Gillian Lester

Faculty Scholarship

How does one win popular support for laws designed specifically to redistribute economic wealth? One can hardly gainsay that this is a – perhaps the – defining issue for domestic policy in the age of President Obama. Even as the recent financial crisis has exposed the need for a reliable social safety net, attempts to respond through the political and legislative arenas have triggered increasingly hostile responses among conservatives, populists, Massachusetts voters, and incipient tea partiers. The puzzle of how to attract and preserve public support for law reform aimed at redistribution – of both income and risk – is …

Traynor (Drennan) Versus Hand (Baird): Much Ado About (Almost) Nothing, Victor P. Goldberg

Faculty Scholarship

Most Contracts casebooks feature either Baird v. Gimbel or Drennan v. Star Paving to illustrate the limits on revocability of an offer. In this article an analysis of the case law yields three major conclusions. First, as is generally known, in the contractor-subcontractor cases Drennan has prevailed. However, both it and its spawn, Restatement 2d E 87(2), have had almost no impact outside that narrow area. Moreover, almost all the cases involve public construction projects – private projects account for only about ten percent of the cases. This suggests that private parties have managed to resolve the problem contractually. Public …

Private Rights In Public Lands: The Chicago Lakefront, Montgomery Ward, And The Public Dedication Doctrine, Joseph D. Kearney, Thomas W. Merrill

Faculty Scholarship

When one thinks of how the law protects public rights in open spaces, the public trust doctrine comes to mind. This is especially true in Chicago. The modem public trust doctrine was born in the landmark decision in Illinois Central Railroad Co. v. Illinois, growing out of struggles over the use of land along the margin of Lake Michigan in that city. Yet Chicago's premier park – Grant Park, sitting on that land in the center of downtown Chicago – owes its existence to a different legal doctrine. This other doctrine, developed by American courts in the nineteenth century, …

Shouting "Fire!" In A Theater And Vilifying Corn Dealers, Vincent A. Blasi

Faculty Scholarship

Five years ago, Fred Schauer published an article with the intriguing title: "Do Cases Make Bad Law?" Playing off Holmes' observation that "[g]reat cases like hard cases make bad law," Schauer explored the possibility, as he put it, that "it is not just great cases and hard cases that make bad law, but simply the deciding of cases that makes bad law.” His concern, confirmed and deepened by his characteristically balanced inquiry, was that general principles forged in the resolution of specific legal disputes can suffer by virtue of that provenance. Because such principles by definition are meant to carry …

Hot News: The Enduring Myth Of Property In News, Shyamkrishna Balganesh

Faculty Scholarship

The “hot news” doctrine refers to a cause of action for the misappropriation of time-sensitive factual information that state laws afford purveyors of news against free riding by a direct competitor. Entirely the offshoot of the Supreme Court’s decision in International News Service v. Associated Press, the doctrine enables an information gatherer to prevent a competitor from free riding on its efforts at collecting and distributing timely information. Over the last few years, newsgatherers of different kinds have begun using the doctrine with increased frequency, believing it to create and protect an ownership interest in news. This Article argues …

A Foxy Hedgehog: The Consistent Perceptions Of Carol Rose, Jedediah S. Purdy

Faculty Scholarship

In a tribute like this, the question arises unavoidably: is Carol a fox or a hedgehog? That is, following Isaiah Berlin’s iconic distinction, does she know many things, like the fox, or, like the hedgehog, does she know one big thing?

It may seem strange that the ecosystem of legal scholarship should contain so little biodiversity; but the question engaged me. I started out thinking that Carol must be a fox, but I may have thought so for the wrong reasons: reasons of style, basically, having to do with her light-footedness, her deftness, and the recurrent sense that, just when …

The Effect Of Female Education On Fertility And Infant Health: Evidence From School Entry Policies Using Exact Date Of Birth, Justin Mccrary, Heather Royer

Faculty Scholarship

This paper uses age-at-school-entry policies to identify the effect of female education on fertility and infant health. We focus on sharp contrasts in schooling, fertility, and infant health between women born just before and after the school entry date. School entry policies affect female education and the quality of a woman’s mate and have generally small, but possibly heterogeneous, effects on fertility and infant health. We argue that school entry policies manipulate primarily the education of young women at risk of dropping out of school.

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).