Law Commons^™

Investment Treaties, Investor-State Dispute Settlement And Inequality, Lisa E. Sachs, Lise Johnson

Columbia Center on Sustainable Investment Staff Publications

International investment treaties entrench and exacerbate intra-national inequality by:

1. Providing stronger substantive legal rights to a certain class of actors that in turn strengthen the legal force of their economic rights and “expectations”, with potentially negative impacts on the competing rights and interests of other stakeholders; and
2. Providing unequal procedural rights to a certain class of actors, easing their ability, through ISDS, to challenge regulatory measures negatively impacting their economic interests, while other individuals and entities continue to face relatively high legal and practical barriers to using litigation to protect and/or enhance public interest objectives.

This Working Paper, adapted from …

Law Professors File Amicus Brief On Religious Liberty Rights In Appeal From Criminal Conviction Of Az Immigrants Rights Activists, Law, Rights, And Religion Project

Center for Gender & Sexuality Law

Nationally recognized law professors with expertise in religious liberty law filed an amicus brief in the appeal of the convictions of four sanctuary activists who were found guilty in January of the crime of leaving water and food in the desert for migrants. The activists were volunteers with the group No More Deaths/No Más Muertes, and have petitioned a federal court in Arizona to reverse their conviction after a three-day trial.

Innovative Financing Solutions For Community Support In The Context Of Land Investments, Sam Szoke-Burke

Columbia Center on Sustainable Investment Staff Publications

Communities affected by agricultural, forestry, and other resource investments urgently need increased funding for legal and technical support. Without support, communities risk losing access to critical land and resources, suffering human rights violations, or missing opportunities to benefit from investments. A lack of community support can also lead to conflict and challenges that are damaging for companies and host governments.

Donors and support providers have found ways to finance support for communities, but such efforts can only extend so far. Promising new opportunities exist for filling the financing gap, yet they will require sustained efforts by a range of actors. …

Professor Katherine Franke Joins An Amicus Brief In Commonwealth Of Pennsylvania And New Jersey V. Trump, Law, Rights, And Religion Project

Center for Gender & Sexuality Law

On Monday, March 25th, Professor Katherine Franke, Faculty Director of the Law, Rights, and Religion Project at Columbia Law School, joined an amicus brief in Commonwealth of Pennsylvania and New Jersey v. Trump,* a challenge to two rules that exempt employers with religious or moral objections from compliance with the contraceptive coverage requirement of the Affordable Care Act.

Comments On Preliminary Draft 4 [Black Letter And Comments], Jane C. Ginsburg, June M. Besek

Faculty Scholarship

In many respects, PD4 is a helpful synthesis of the law, likely to provoke less controversy than drafts of earlier Chapters. Nevertheless, we remain concerned about this draft’s, like its predecessors’, inconsistent treatment of legal issues. As in earlier drafts, this one sometimes traverses the line between restating positive law and “improving” it. In several instances, these departures from positive law adopt policy positions we would endorse in a different kind of endeavor, such as a “Principles” project, or an acknowledged advocacy piece. But we do not believe it accurate to characterize these departures, however substantively desirable, as “restating” the …

Private Ownership At A Public Crossroads: Studying The Rapidly Evolving World Of Corporate Ownership, Ira M. Millstein Center For Global Markets And Corporate Ownership

Ira M. Millstein Center for Global Markets and Corporate Ownership

Capital formation in the United States is currently in the midst of a significant transition with largely unexplored consequences for the ownership and control of American business, as well as significant implications for the future of the public equity markets. Although public equity markets remain vast and important, they are no longer the primary source of capital for business formation and growth. Increasingly, capital for business formation and growth is being raised — and held — privately from a relatively new set of institutional investors (most importantly, venture capital and private equity funds). As a result, ownership and control over …

Standing Rock Defendants Move To Dismiss On Basis Of Factual Disputes, Columbia Center For Contemporary Critical Thought

Columbia Center for Contemporary Critical Thought

New York, February 15, 2019. Today, state and county defendants in Thunderhawk v. County of Morton et al. filed motions to dismiss plaintiffs’ First Amended Complaint. In their court filings, defendants attach 160 exhibits contesting the peaceful nature of the NoDAPL movement, arguing that their discriminatory closure of Highway 1806 was factually justified. Defendants ask the United States District Court to accept their factual account of the NoDAPL movement over the plaintiffs’.

Standing Rock Plaintiffs File First Amended Complaint, Columbia Center For Contemporary Critical Thought

Columbia Center for Contemporary Critical Thought

New York, February 1, 2019—Today, Cissy Thunderhawk, Wašté Win Young, the Reverend John Floberg, and José Zhagñay filed their First Amended Complaint in response to state and local defendants’ motions to dismiss. The amended complaint clarifies the civil rights violations caused when defendants closed, to the Tribe and its supporters, the primary road connecting the Standing Rock Reservation to both Bismarck and to numerous public sites of great expressive and religious significance. The plaintiffs are represented by Columbia Law School Lecturer in Law Noah Smith-Drelich and Professor Bernard E. Harcourt through the Columbia Center for Contemporary Critical Thought.

Advancing Racial Justice And Human Rights: Rights-Based Strategies For The Current Era, Human Rights Institute

Human Rights Institute

On June 1, 2018, the Human Rights Institute convened its 15th annual CLE Symposium on Human Rights in the United States, a signature event of the Human Rights Institute’s Bringing Human Rights Lawyers’ Network. The day-long event brought together more than 150 leading U.S. lawyers, activists, and academics, along with federal and local government representatives to share strategies to advance racial justice within a domestic and global context increasingly hostile to human rights.

This report highlights key takeaways and themes from the Symposium, drawing from speakers’ remarks and their advocacy. It also serves as a basic human rights primer, describing …

Red Mining: Mining And The Right To Water In Porgera, Papua New Guinea, Human Rights Clinic, Advanced Consortium On Cooperation, Conflict And Complexity (Ac4)

Human Rights Institute

The Porgera Joint Venture (PJV) gold mine in the highlands of Papua New Guinea (PNG) has been one of the world’s highest producing gold mines over the course of its quarter-century history, and has accounted for a considerable percentage of PNG’s economic income. Yet many Porgeran residents live in deplorable conditions and feel trapped by the mine. Where they once farmed vegetables and collected fresh water from natural streams, they now see ever-expanding waste dumps. For years, security guards at the mine physically abused many residents, including sexually assaulting and gang-raping Porgeran women. 3 Residents feel the earth shake with …

Japan's Constitution Across Time And Space, Carol Gluck

Center for Japanese Legal Studies

Constitutional reform is a matter of time, the time when the original and the revisions were drafted; and of space, the global context which comprises the transnational constitutional expanse that influenced all modern constitutions from the late eighteenth century on. Of the some 198 written constitutions now in force, more than half were promulgated during the past sixty years. The U.S. Constitution of 1787 is the oldest, and if one counts the 1947 Constitution as an amendment of the Meiji Constitution of 1889 – which formally and technically it was – Japan’s is the world’s tenth oldest written constitution still …

Rhetoric And Realism: The First Diet Debates On Japan's Military Power, Sheila A. Smith

Center for Japanese Legal Studies

Article 9 has been the focus of legislative debate since Japanese leaders concluded the San Francisco Peace Treaty in 1952, ending the U.S. Occupation of their country. Conservatives and progressives alike sought to consider what this new constitution meant for Japan’s postwar defenses, and how it was to be translated into a rearmament policy. Until a new law was passed to create the Self Defense Force in 1954, these Diet debates offer a fascinating window on the effort to define what Article 9 meant, and the issues that provoked contention among political parties.

Most of the critical questions regarding how …

Implications Of Revision Of Article 9 Of The Constitution Of Japan On The Defense Policy Of Japan, Hideshi Tokuchi

Center for Japanese Legal Studies

On December 20, 2018, a P-1 patrol aircraft of Japan’s Maritime Defense Force was flying within Japan’s exclusive economic zone (EEZ) in the Sea of Japan as part of ordinary intelligence collection and warning and surveillance activities, when it observed a destroyer, and a patrol and rescue vessel of the Republic of Korea (South Korea). While photographing the Korean vessels, the Japanese P-1 patrol aircraft was suddenly irradiated by a fire-control radar from the Korean destroyer. A crew member of the P-1 aircraft tried to communicate with the Korean ship in English, saying, “This is Japan Navy. This is Japan …

How International Oil Companies Could Assist Greece To Achieve The Sustainable Development Goals: A Conversation Starter, Alexandra Sdoukou, Andreas Tornaritis, Perrine Toledano

Columbia Center on Sustainable Investment Staff Publications

This policy paper wishes to be a timely contribution towards a fruitful debate among stakeholders; it urges International Oil Companies (IOCs) to examine how the critical Sustainable Development Goals (SDGs) for Greece can be integrated into their core business so that the oil and gas industry can contribute to the country’s sustainable growth.

Bridging The Information Gap: How Access To Land Contracts Can Serve Community Rights, Lara Wallis, Sam Szoke-Burke

Columbia Center on Sustainable Investment Staff Publications

Land contracts (also known as investor-state contracts, or concession agreements) show what commitments a forestry, farming or renewable energy company has made and what the government has said the company can do on the land. These promises define the positive and harmful effects the company’s project could have on community members’ livelihoods and human rights, and on the environment.

Accessing land contracts is a crucial strategy for local organizations. This briefing note explains how local organizations can use land contracts and the Open Land Contracts repository (OpenLandContracts.org) to help communities to:

• Understand company and government obligations related to a company …

Reputational And Integrity Due Diligence On Investors, Kroll, Columbia Center On Sustainable Investment

Columbia Center on Sustainable Investment Staff Publications

Before deciding to invest, companies and investors will perform background research on the uncertainties and risks associated with the proposed investment. For natural resource projects, there are risks around geology, market and price developments, construction delays, operations, regulatory changes, political disruptions, and reputational issues. Feasibility studies and due diligence assessments aim to better understand these risks, reduce uncertainty where possible and be better prepared to manage them.

Governments too should understand the risks that are associated with the proposed investments and get to know the investors before entering into negotiations or signing contracts. This is particularly important for long-term agreements …

Investment Treaties, Investor-State Dispute Settlement, And Inequality: How International Investment Treaties Exacerbate Domestic Disparities, Lise Johnson, Lisa E. Sachs

Columbia Center on Sustainable Investment Staff Publications

Over roughly the past four decades, government officials from around the world have been erecting a framework of economic governance with major – but under-appreciated – implications for intra-national inequality. The components of this framework are thousands of bilateral and multilateral treaties designed to protect international investment. In many jurisdictions, the treaties have been concluded without public awareness or scrutiny or even much discussion or analysis by government officials – including those officials responsible for negotiating the agreements(Poulsen 2015) – and without an adequate understanding of how these agreements could affect intra-national inequality. Long imperceptible, the size and power of …

Insulation By Separation: When Dual-Class Stock Met Corporate Spin-Offs, Young Ran Kim, Geeyoung Min

Ira M. Millstein Center for Global Markets and Corporate Ownership

The recent rise of shareholder engagement has revamped companies’ corporate governance structures so as to empower shareholder rights and to constrain managerial opportunism. The general trend notwithstanding, this Article uncovers corporate spin-off transactions — which divide a single company into two or more companies — as a unique mechanism that insulates the management from shareholder intervention. In a spin-off, the company’s managers can fundamentally change the governance arrangements of the new spun-off company without being subject to monitoring mechanisms, such as shareholder approval or market check. Furthermore, most spin-off transactions enjoy tax benefits. The potential agency problems associated with the …

The Limits Of Smart Contracts, Jens Frankenreiter

Ira M. Millstein Center for Global Markets and Corporate Ownership

This essay investigates the potential of smart contracts to replace the legal system as an infrastructure for transactions. It argues that (contract) law remains relevant for most transactions even if they are entirely structured by way of smart contract. The reason for this is that the power of smart contracts to create and enforce obligations against attempts by the legal system to thwart their execution is limited. These limitations are most relevant for obligations to perform certain actions outside the blockchain, but also apply to other obligations contingent on facts outside the records stored on the blockchain.

Active Firms And Active Shareholders: Corporate Political Activity And Shareholder Proposals, Geeyoung Min, Hye Young You

Ira M. Millstein Center for Global Markets and Corporate Ownership

This article reveals the positions of corporations not only as active players in politics but also as targets of activist shareholders with opposing political preferences. We examine whether a firm’s political orientation, as measured by its political spending, serves as a driver of shareholder proposal submissions, one manifestation of shareholder activism. Using data on S&P 500 companies for 1997–2014, we find that the divergence in political orientation between shareholders and corporate management is strongly associated with the number of submissions of shareholder proposals on environmental or social issues. Firms that contribute more to the Republican Party are more likely to …

Annual Report 2018, Ira M. Millstein Center For Global Markets And Corporate Ownership

Ira M. Millstein Center for Global Markets and Corporate Ownership

We are excited to update you after a very active 2018, which brought about positive change here at the Millstein Center.

Canadian Corruption And The Snc-Lavalin Affair, Center For The Advancement Of Public Integrity

Center for the Advancement of Public Integrity (Inactive)

On February 7, 2019, The Globe and Mail published a report alleging that Canadian Prime Minister Justin Trudeau, together with his aides and cabinet officers, had attempted to improperly influence former Attorney General Jody Wilson-Raybould in the Canadian Justice Department’s prosecution of Montreal construction firm SNC-Lavalin. SNC-Lavalin is a major company, which employs thousands of workers and reported 10 billion Canadian Dollars in revenue in 2018. The charges against them centered around allegations that they had made numerous bribes to Libyan officials from 2001-2011 in order to secure contracts. Due to these charges, SNC-Lavalin faces a potential ban on bidding …

Re-Examining The Line Between Personal And Political Campaign Expenditures: Possible Solutions For A Hazy Statutory Framework, Jeffrey Greenberg

Center for the Advancement of Public Integrity (Inactive)

On Wednesday, May 16, 2018, the Public Integrity Bureau of the New York State Attorney General’s Office indicted Richard Thomas. Thomas, the mayor of Mount Vernon, New York, faced felony charges of grand larceny and filing false statements resulting from the alleged theft of thousands of dollars from his mayoral campaign committee, Friends of Richard Thomas, for meals, automobile payments, and other personal expenses. While Thomas eventually pled guilty to misdemeanor charges and resigned from office, the prosecutors’ choice to use fraud and theft statutes rather than election law violations as the foundation for their theory of the case calls …

The Department Of Defense Office Of Inspector General’S Seven Key Principles For Improving Our Federal Employee Viewpoint Survey Scores, Glenn A. Fine

Center for the Advancement of Public Integrity (Inactive)

Every year, the Office of Personnel Management (OPM) surveys employees throughout the federal government on how they view their organizations. This survey, called the Federal Employee Viewpoint Survey, or FedView Survey, asks federal employees a variety of questions about their views of their organization, managers, supervisors, and senior leaders; whether the employees believe they have the training and tools they need to do their jobs; overall how satisfied they are with their organization; and several other important questions related to employee engagement. The Partnership for Public Service then analyzes the results of the survey and ranks the government organizations on …

Prosecuting Vote Suppression By Misinformation, Chelsea Mihelich

Center for the Advancement of Public Integrity (Inactive)

Following the 2016 U.S. presidential election, concerns about the influence of “fake news” proliferated in the media. Questions abounded regarding the affect social media platforms may have had on the electorate. Election Day 2016 had many in the media pondering: “Did Social Media Ruin Election 2016?” and “Facebook’s failure: did fake news and polarized politics get Trump elected?” Two years after the election, social science scholars were still studying the effect of voters’ consumption of fake news stories leading up to November 8. The current fascination in the U.S. regarding fake news and, relatedly, the role of social media as …

Governance And Public Transparency: The Brazilian Case, Humberto E.C. Mota Filho, Cláudio Nascimento Alradique

Center for the Advancement of Public Integrity (Inactive)

Aiming to provide an overall assessment of the impact of the Constitution of the Federative Republic of Brazil (“CFRB” - which is in effect since 1988), in the construction of a Democratic State of Law, over the past 30 years, this article investigates how the institutional improvements achieved took form, the transformation of the State's role in the enforcement of human rights and individual guarantees, and the changes that took place towards a democratic political culture, both from the perspective of the citizen relating to the State and the citizen relating to the State's external oversight body (“TCU” - Federal …

From The Basketball Court To Federal Court: Perils Of The Prosecutorial Approach To Wire Fraud In The Ncaa Basketball Cases, Paul Tuchmann

Center for the Advancement of Public Integrity (Inactive)

Three similar criminal cases involving college basketball are currently progressing through the Southern District of New York. The first to go to trial, United States v. James Gatto, Merl Code, and Christian Dawkins, No. 17 Crim. 686, culminated in a guilty verdict on October 24, 2018, with all three defendants found guilty on charges of wire fraud and conspiracy to commit wire fraud.

The United States Attorney’s Office for the Southern District of New York alleged that the Gatto defendants participated in a scheme in which the defendants—former Adidas employees Gatto and Code, as well as aspiring sports agent …

Oversight And Enforcement Of Public Integrity – A City-By-City Study: Nashville, Berit Berger, Edward Popovici, Rosie Fatt, Benjamin Bleibert

Center for the Advancement of Public Integrity (Inactive)

Nashville’s identity, at least to an outsider’s eye, is inextricably linked to its musical heritage. But quite apart from its lyrical inclinations, Music City USA also has history of corruption scandals, countered by grassroots efforts of its citizenry to push for a more open and transparent government. The recent corruption charges against ex-Mayor Megan Barry and the “Do Better” law passed at the end of 2018 perfectly exemplify these dueling motifs of corruption and public integrity activism.

Nashville was founded in 1779 under the name of Fort Nashborough. In 1806, Nashville was granted a charter by the Tennessee legislature and …

Report Of The Task Force For The Promotion Of Public Trust: City Of Atlanta, Leah Ward Sears, Derek Alphran, O.V. Brantley, Linda Disantis, William S. Duffy Jr., Robert M. Franklin Jr., Maryanne Gaunt, Lawton Jordan, Don Penovi, Michael T. Sterling, Joseph Wilkinson Jr., Paul Zucca

Center for the Advancement of Public Integrity (Inactive)

The Task Force for the Promotion of Public Trust was formed out of a desire by the Mayor and Atlanta City Council to strengthen the City’s ethical environment and analyze the City’s existing resources pertaining to oversight and investigations currently divided among a number of City agencies. The Task Force was also asked to assess the role of the City’s Independent Compliance Office, a new investigative office created by Ordinance earlier this year. The mandate of the Task Force was to juxtapose an analysis of the operational roles of the multiple offices in Atlanta responsible for investigations, ethics, oversight, audit, …

Tweets, Lobbying, And Loopholes: A Pragmatic Approach To Lobbying Reform, Jackson Rubinowitz

Center for the Advancement of Public Integrity (Inactive)

On May 30, 2019, an unlikely agreement between Rep. Alexandria Ocasio-Cortez and Sen. Ted Cruz appeared to take place on Twitter. Ocasio-Cortez tweeted that members of Congress should be banned from becoming corporate lobbyists or should at least be subjected to a waiting period following their congressional service. Ocasio-Cortez cited a statistic from Public Citizen, in which the advocacy group reported that among former Congress members who move to jobs outside of politics, nearly 60% start lobbying or otherwise influencing federal policy. After Cruz weighed in expressing his agreement with Ocasio-Cortez’s proposal, Ocasio-Cortez proposed a deal to co-lead a bill …