Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Articles 1 - 16 of 16

Full-Text Articles in Law

Agricultural Investments Under International Investment Law, Jesse Coleman, Sarah Brewin, Thierry Berger Oct 2018

Agricultural Investments Under International Investment Law, Jesse Coleman, Sarah Brewin, Thierry Berger

Columbia Center on Sustainable Investment Staff Publications

International investment law, based primarily on international investment treaties, plays an important role in the governance of investment in agriculture, forestry, and fishing. The obligations established by these treaties, and enforced by means of investor–state arbitration, can present challenges for policy-makers and others seeking to ensure that investments are sustainable, including by affecting the ways in which the costs and benefits of investments are distributed among different actors.

CCSI partnered with the International Institute for Environment and Development (IIED) and the International Institute for Sustainable Development (IISD) to produce a briefing note on agricultural investments under international investment law ...


Beyond The Bosses' Constitution: The First Amendment And Class Entrenchment, Jedediah S. Purdy Jan 2018

Beyond The Bosses' Constitution: The First Amendment And Class Entrenchment, Jedediah S. Purdy

Faculty Scholarship

The Supreme Court’s “weaponized” First Amendment has been its strongest antiregulatory tool in recent decades, slashing campaign-finance regulation, public-sector union financing, and pharmaceutical regulation, and threatening a broader remit. Along with others, I have previously criticized these developments as a “new Lochnerism.” In this Essay, part of a Columbia Law Review Symposium, I press beyond these criticisms to diagnose the ideological outlook of these opinions and to propose an alternative. The leading decisions of the antiregulatory First Amendment often associate free speech with a vision of market efficiency; but, I argue, closer to their heart is antistatist fear of ...


Dignity Rights: A Response To Peggy Cooper Davis's Little Citizens And Their Families, Jane M. Spinak Jan 2016

Dignity Rights: A Response To Peggy Cooper Davis's Little Citizens And Their Families, Jane M. Spinak

Faculty Scholarship

Professor Spinak responds to Professor Davis’ comment by considering how the concept of human dignity can be used to reassert human rights – of individual members of the family and the family as an entity – that have been diminished, if not destroyed, by poverty and inequality.


Comments On The Morality Of Freedom, Joseph Raz Jan 2016

Comments On The Morality Of Freedom, Joseph Raz

Faculty Scholarship

The paper mixes comments on the ambitions that motivated writing The Morality of Freedom with observations on comments on the book, made at a conference in Jerusalem in 2016, by Japa Pallikkathayil, Avishai Margalit, Michael Otsuka, Jon Quong, Daniel Viehoff, Asaf Sharon and Arudra Burra. It acknowledges some of the critical points made while resisting others. Its strives to combine clarification of some of the themes in the book with recognition that its ideas require further development, and can be developed in various directions.


Exclusion And Equality: How Exclusion From The Political Process Renders Religious Liberty Unequal, Philip A. Hamburger Jan 2015

Exclusion And Equality: How Exclusion From The Political Process Renders Religious Liberty Unequal, Philip A. Hamburger

Faculty Scholarship

Exclusion from the political process is a central question in American law. Thus far, however, it has not been recognized how religious Americans are excluded from the political process and what this means for religious equality.

Put simply, both administrative lawmaking and § 501 (c)(3) of the Internal Revenue Code substantially exclude religious Americans from the political process that produces laws. As a result, apparently equal laws are apt, in reality, to be unequal for religious Americans. Political exclusion threatens religious equality.

The primary practical conclusion concerns administrative law. It will be seen that this sort of "law" is made ...


Leveraging Antidiscrimination, Olatunde C.A. Johnson Jan 2014

Leveraging Antidiscrimination, Olatunde C.A. Johnson

Faculty Scholarship

As the Civil Rights Act of 1964 turns fifty, antidiscrimination law has become unfashionable. Civil rights strategies are posited as not up to the serious task of addressing contemporary problems of inequality such as improving mobility for low-wage workers or providing access into entry-level employment. This Article argues that there is a danger in casting aside the Civil Rights Act as one charts new courses to address inequality. This Article revisits the implementation strategies that emerged in the first decade of the Act to reveal that the Act was not limited to addressing formal discrimination or bias, but rather drew ...


Beyond The Private Attorney General: Equality Directives In American Law, Olatunde C.A. Johnson Jan 2013

Beyond The Private Attorney General: Equality Directives In American Law, Olatunde C.A. Johnson

Faculty Scholarship

American civil rights regulation is generally understood as relying on private enforcement in courts, rather than imposing positive duties on state actors to further equity goals. This Article argues that this dominant conception of American civil rights regulation is incomplete. Rather, American civil rights regulation also contains a set of “equality directives,” whose emergence and reach in recent years have gone unrecognized in the commentary. These federal-level equality directives use administrative tools of conditioned spending, policymaking, and oversight powerfully to promote substantive inclusion with regard to race, ethnicity, language, and disability. These directives move beyond the constraints of the standard ...


Beyond The Private Attorney General: Equality Directives In American Law, Olatunde C.A. Johnson Jan 2012

Beyond The Private Attorney General: Equality Directives In American Law, Olatunde C.A. Johnson

Faculty Scholarship

American civil rights regulation is generally understood as relying on private enforcement in courts rather than imposing positive duties on state actors to further equity goals. This Article argues that this dominant conception of American civil rights regulation is incomplete. American civil rights regulation also contains a set of "equality directives," whose emergence and reach in recent years have gone unrecognized in the commentary. These federal-level equality directives use administrative tools of conditioned spending, policymaking, and oversight powerfully to promote substantive inclusion with regard to race, ethnicity, language, and disability. These directives move beyond the constraints of the standard private ...


The So-Called Right To Privacy, Jamal Greene Jan 2010

The So-Called Right To Privacy, Jamal Greene

Faculty Scholarship

The constitutional right to privacy has been a conservative bugaboo ever since Justice Douglas introduced it into the United States Reports in Griswold v. Connecticut. Reference to the "so-called" right to privacy has become code for the view that the right is doctrinally recognized but not in fact constitutionally enshrined. This Article argues that the constitutional right to privacy is no more. The two rights most associated historically with the right to privacy are abortion and intimate sexual conduct, yet Gonzales v. Carhart and Lawrence v. Texas made clear that neither of these rights is presently justified by its proponents ...


The So-Called Right To Privacy, Jamal Greene Jan 2009

The So-Called Right To Privacy, Jamal Greene

Faculty Scholarship

The constitutional right to privacy has been a conservative bugaboo ever since Justice Douglas introduced it into the United States Reports in Griswold v. Connecticut. Reference to the 'so-called' right to privacy has become code for the view that the right is doctrinally recognized but not in fact constitutionally enshrined. This Article argues that the constitutional right to privacy is no more. The two rights most associated historically with the right to privacy are abortion and intimate sexual conduct, yet Gonzales v. Carhart and Lawrence v. Texas made clear that neither of these rights is presently justified by its proponents ...


Constitutional Tipping Points: Civil Rights, Social Change, And Fact-Based Adjudication, Suzanne B. Goldberg Jan 2007

Constitutional Tipping Points: Civil Rights, Social Change, And Fact-Based Adjudication, Suzanne B. Goldberg

Faculty Scholarship

This Article offers an account of how courts respond to social change, with a specific focus on the process by which courts "tip" from one understanding of a social group and its constitutional claims to another. Adjudication of equal protection and due process claims, in particular, requires courts to make normative judgments regarding the effect of traits such as race, sex, sexual orientation, or mental retardation on group members' status and capacity. Yet, Professor Goldberg argues, courts commonly approach decisionmaking by focusing only on the 'facts" about a social group, an approach that she terms 'fact-based adjudication." Professor Goldberg critiques ...


Constitutional Tipping Points: Civil Rights, Social Change, And Fact-Based Adjudication, Suzanne B. Goldberg Jan 2006

Constitutional Tipping Points: Civil Rights, Social Change, And Fact-Based Adjudication, Suzanne B. Goldberg

Faculty Scholarship

This Article offers an account of how courts respond to social change, with a specific focus on the process by which courts "tip" from one understanding of a social group and its constitutional claims to another. Adjudication of equal protection and due process claims, in particular, requires courts to make normative judgments regarding the effect of traits such as race, sex, sexual orientation, or mental retardation on group members' status and capacity. Yet, Professor Goldberg argues, courts commonly approach decisionmaking by focusing only on the 'facts" about a social group, an approach that she terms 'fact-based adjudication." Professor Goldberg critiques ...


Constitutional Tipping Points: Civil Rights, Social Change, And Fact-Based Adjudication, Suzanne B. Goldberg Jan 2006

Constitutional Tipping Points: Civil Rights, Social Change, And Fact-Based Adjudication, Suzanne B. Goldberg

Faculty Scholarship

This Article offers an account of how courts respond to social change, with a specific focus on the process by which courts "tip" from one understanding of a social group and its constitutional claims to another. Adjudication of equal protection and due process claims, in particular, requires courts to make normative judgments regarding the effect of traits such as race, sex, sexual orientation, or mental retardation on group members' status and capacity. Yet, Professor Goldberg argues, courts commonly approach decisionmaking by focusing only on the "facts" about a social group, an approach that she terms "fact-based adjudication." Professor Goldberg critiques ...


A Historical Guide To The Future Of Marriage For Same-Sex Couples, Suzanne B. Goldberg Jan 2006

A Historical Guide To The Future Of Marriage For Same-Sex Couples, Suzanne B. Goldberg

Faculty Scholarship

This article critically analyzes the evolving history of marriage, prompted by the marriage equality claims brought by same-sex couples. The article includes a copy of an amicus brief submitted on behalf of historians to a New Jersey appellate court in Lewis v. Harris, an ultimately successful challenge to the denial of relationship recognition rights for same-sex couples.


Equality Without Tiers, Suzanne B. Goldberg Jan 2004

Equality Without Tiers, Suzanne B. Goldberg

Faculty Scholarship

Equality Without Tiers offers a comprehensive analysis of tiered equal protection review and argues that the current framework has outlived its utility and functions in many respects as a barrier to equality. As an alternative to the current ossified test, the article develops and tests a single standard of review aimed to provide a more finely calibrated response to the complexities of discrimination in the 21st century.

To support this argument, the article focuses first on tensions in the current tiered framework for equal protection review, pointing to, among others, the Court's variously weak and strong approaches to rational ...


Social Justice Movements And Latcrit Community: On Making Social Constructionist And Anti-Essentialist Arguments In Court, Suzanne B. Goldberg Jan 2002

Social Justice Movements And Latcrit Community: On Making Social Constructionist And Anti-Essentialist Arguments In Court, Suzanne B. Goldberg

Faculty Scholarship

This article examines the difficulties associated with identity-based arguments in litigation. In particular, the article considers the ways in which anti-essentialist and social constructionist framings of identity clash with judicial preferences for fixed identity categories. I review cases in which courts have addressed anti-essentialist and social constructionist arguments (both positively and negatively) and offer preliminary hypotheses to explain the limits on courts' willingness to accept these types of arguments