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Columbia Law School

2010

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Full-Text Articles in Law

Promises To Keep: Diplomatic Assurances Against Torture In Us Terrorism Transfers, Human Rights Institute Dec 2010

Promises To Keep: Diplomatic Assurances Against Torture In Us Terrorism Transfers, Human Rights Institute

Human Rights Institute

“Diplomatic assurances” are promises not to torture. They are sought when transferring a detainee from the custody of one government to another. Not surprisingly, they are sought from governments that typically torture.

This report surveys the law and practice of assurances in the US and, comparatively, in Canada and Europe. It is the culmination of a long-term engagement by Columbia’s Human Rights Clinic and its faculty to research and support advocacy on diplomatic assurances. That process has involved advocacy with Swedish NGOs, support for research by Human Rights Watch, FOIA requests with the ACLU and collaborative efforts with UN mechanisms. …


Investment Promotion Agencies And Sustainable Fdi: Moving Toward The Fourth Generation Of Investment Promotion, Columbia Center On Sustainable Investment, World Association Of Investment Promotion Agencies Jun 2010

Investment Promotion Agencies And Sustainable Fdi: Moving Toward The Fourth Generation Of Investment Promotion, Columbia Center On Sustainable Investment, World Association Of Investment Promotion Agencies

Columbia Center on Sustainable Investment Staff Publications

In April and May 2010, CCSI supported WAIPA to conduct its annual survey. This report, Investment Promotion Agencies and Sustainable FDI: Moving toward the Fourth Generation of Investment Promotion, benchmarks the responses of IPAs regarding sustainable FDI and its four dimensions (economic development, environmental sustainability, social development, governance) and finds, among other things, that these are unevenly addressed by investment promotion strategies and investment incentives. The report also draws attention to the desirability of attracting sustainable FDI, rather than focusing on volume of investment alone.

In 2017, CCSI also helped the World Association of Investment Promotion Agencies (WAIPA) to conduct …


United States Response To Questionnaire Concerning The Terms Of Protection In The Field Of Copyright And Related Rights, June M. Besek, Jane C. Ginsburg, N. Orly Leventer, Joshua L. Simmons Jun 2010

United States Response To Questionnaire Concerning The Terms Of Protection In The Field Of Copyright And Related Rights, June M. Besek, Jane C. Ginsburg, N. Orly Leventer, Joshua L. Simmons

Faculty Scholarship

No abstract provided.


Human Rights And Domestic Violence: An Advocacy Manual, Human Rights Clinic Feb 2010

Human Rights And Domestic Violence: An Advocacy Manual, Human Rights Clinic

Human Rights Institute

Though international law is traditionally called “the law of nations,” it governs far more than relations between the countries of the world. International human rights law pushes the boundaries of State responsibility and allows individuals to directly demand accountability for both governmental action and inaction that violates basic human rights. International human rights treaties declare the minimum standards by which States (i.e. nation-states, or countries) are expected to comply. The theme of the 2010 Fourteenth Annual Domestic Violence Conference at Fordham Law School, “Expanding Our Vision: Human Rights, Victims’ Rights, and Approaches to Diverse Families,” for which this manual was …


"It's Not Easy Being Green": Local Initiatives, Preemption Problems, And The Market Participant Exception, Michael Burger Jan 2010

"It's Not Easy Being Green": Local Initiatives, Preemption Problems, And The Market Participant Exception, Michael Burger

Sabin Center for Climate Change Law

This Article considers whether the market participant exception should be interpreted to exempt local climate change and sustainability initiatives from the "ceilings" imposed by existing environmental laws and pending federal climate change legislation. In the decades-long absence of federal action on climate change, local governments – along with the states – positioned themselves at the forefront of climate change and sustainability planning. In fact, state and local actions account for most of the nation's greenhouse gas reduction efforts to date. Yet, front-running localities are being limited by a preemption doctrine that fails to account for both the motives behind their …


Preemption And Alteration Of Epa And State Authority To Regulate Greenhouse Gases In The Kerry-Lieberman Bill, Bradford Mccormick, Hannah Chang Jan 2010

Preemption And Alteration Of Epa And State Authority To Regulate Greenhouse Gases In The Kerry-Lieberman Bill, Bradford Mccormick, Hannah Chang

Sabin Center for Climate Change Law

The recently-released discussion draft of the Kerry-Lieberman bill (KL), officially titled the American Power Act, contains numerous provisions that affect the role of states in addressing climate change as well as the Environmental Protection Agency’s (EPA) authority under the Clean Air Act (CAA). Preemption has been the subject of intense debate and speculation since the passage of the Waxman-Markey climate bill (WM) in June 2009, and commentators have questioned whether KL’s preemption measures would (and should) have the effect of “a scalpel or a sledgehammer” on existing state and EPA authority. The following paper contributes to the discussion by summarizing …


Colorado’S Clean Air-Clean Jobs Act: Encouraging Conversion Of Coal Plants To Natural Gas, Jonathan Talamini Jan 2010

Colorado’S Clean Air-Clean Jobs Act: Encouraging Conversion Of Coal Plants To Natural Gas, Jonathan Talamini

Sabin Center for Climate Change Law

The State of Colorado's recently-enacted Clean Air-Clean Jobs Act (CACJA) requires utilities to create plans that reduce NOx emissions by 70% at a specified portion of their coal-fired electricity generation facilities by the end of 2017. It allows utilities to use many different methods to achieve those reductions, but encourages and incentivizes the replacement of coal-based generation with natural gas. Utilities must seek approval for their plans from state agencies and must work closely with those agencies in designing the plans. This paper discusses the legal, political, and economic context for CACJA, and highlights the bill's advantages and disadvantages as …


"Petitions Without Number": Women’S Petitions And The Early Nineteenth-Century Origins Of Marriage-Based Entitlements, Kristin Collins Jan 2010

"Petitions Without Number": Women’S Petitions And The Early Nineteenth-Century Origins Of Marriage-Based Entitlements, Kristin Collins

Studio for Law and Culture

Between 1792 and 1858, Congress enacted approximately seventy-six public law statutes granting cash subsidies to large classes of military widows. War widows’ pensions were not wholly unknown in Anglo-American law before this time, but the widows’ pension system of the early nineteenth century was distinctive in both scope and kind: Congress rejected the class-based approach that had characterized war widows’ pensions of the eighteenth century by pensioning widows of rank-and-file soldiers, not just widows of officers, and by extending pensions to widows of veterans. This significant equalization and expansion of widows’ pensions resulted in the creation of the first broad-scale …


Knowledge Games, Truth Seeking, And Organ Transplants Regulation, Marie-Andrée Jacob Jan 2010

Knowledge Games, Truth Seeking, And Organ Transplants Regulation, Marie-Andrée Jacob

Studio for Law and Culture

In this paper, I examine how different relations to knowledge are enacted among experts working in the governance of kidney transplants. Using fieldwork material gathered in transplant hospital and bureaus, I analyse how legal knowledge transacts with expert and lay knowledge in the context of very pragmatic tasks: detect the "intention to donate" and the "altruistic motivations" of those who procure a kidney to someone in need. My focus is on the management and circulation of knowledge, rather than the object of knowledge - transplants. Here, the law assigns its regulatory power onto experts, and the committees of experts in …


Rca V. Whiteman: Contested Authorship, Copyright, And The Racial Politics Of The Fight For Property Rights In Musical Recordings In The 1930s, Kurt Newman Jan 2010

Rca V. Whiteman: Contested Authorship, Copyright, And The Racial Politics Of The Fight For Property Rights In Musical Recordings In The 1930s, Kurt Newman

Studio for Law and Culture

Between the Progressive Era and World War II, African American jazz music became the source of big profits for some white entrepreneurs in the United States. The encounter between whites and jazz was both a propertization and a privatization of African American group resources. While new technologies of recording and radio broadcasting were critical factors facilitating these cultural enclosures, the sine qua non was the embeddedness of American intellectual property law in the logic of white supremacy. In this paper, I focus on the popular jazz bandleader Paul Whiteman, best known to most contemporary legal scholars as the defendant in …


“Wife Beating” And “Uninvited Kisses” In The Supreme Court And Society In The Early Twentieth Century, Elizabeth Katz Jan 2010

“Wife Beating” And “Uninvited Kisses” In The Supreme Court And Society In The Early Twentieth Century, Elizabeth Katz

Studio for Law and Culture

This paper challenges the conventional narrative that domestic violence victims were ignored by both law and society in the early 1900s. It begins by questioning the dominant position a single Supreme Court tort case, Thompson v. Thompson, holds in the domestic violence discourse. Far from being a strong or unified statement in favor of family privacy or against battered women’s legal rights, the case was decided by a four-Justice majority that pointed victims toward two very public alternative remedies: divorces with alimony and criminal prosecutions. The paper then proceeds to evaluate whether these proffered remedies were available and sufficient. …


Hobbes And Wolf-Man: Melancholy And Animality In Modern Sovereignty, Diego Rossello Jan 2010

Hobbes And Wolf-Man: Melancholy And Animality In Modern Sovereignty, Diego Rossello

Studio for Law and Culture

Homo homini lupus, man is a wolf to man, remains one of the most well-known and often quoted dictums in the tradition of political theory. Political theorists take this phrase by Thomas Hobbes in the Epistle Dedicatory of De Cive to illustrate the brutish, anarchical and violent condition of man in the natural condition, prior to the establishment of a civil state. Contrary to conventional wisdom, I suggest that this brief passage directs our attention to lycanthropy: an acute melancholic syndrome which 17th century physiologists thought could turn humans into animals. I suggest that Hobbes’s political theory stands for a …


The End Of Al Qaeda? Rethinking The Legal End Of The War On Terror, Adam Klein Jan 2010

The End Of Al Qaeda? Rethinking The Legal End Of The War On Terror, Adam Klein

National Security Law Program

As the war on terrorism approaches its second decade, the open-ended nature of the 2001 Authorization for the Use of Military Force (AUMF) has given rise to the legal question of when, and how, the conflict will end. The indeterminate nature of the conflict has raised fears that the war powers will continue to be exercised indefinitely-a prospect noted with concern by the Supreme Court in Boumediene v. Bush. The prevailing view among legal scholars is that under existing precedents, the AUMF and the concomitant war powers will continue indefinitely in force until the political branches officially declare the …


The Road To Rights: Establishing A Domestic Human Rights Institution In The United States, Leadership Conference Education Fund, Human Rights Institute Jan 2010

The Road To Rights: Establishing A Domestic Human Rights Institution In The United States, Leadership Conference Education Fund, Human Rights Institute

Human Rights Institute

While human rights are often discussed as international standards, they are realized first and foremost at home. Respect for human rights is a domestic endeavor — the promotion, protection and fulfillment of these rights falls to national and local governments, not to international bodies. Because the front line of human rights is domestic, full realization of these rights requires coordination and dialogue between civil society, national policy-making bodies and local institutions.

U.S. human rights advocates have continually emphasized that “human rights begin at home,” and it is only when the full spectrum of rights are recognized and protected in local …


Contracts Confidential: Ending Secret Deals In The Extractive Industries, Peter Rosenblum, Susan Maples Jan 2010

Contracts Confidential: Ending Secret Deals In The Extractive Industries, Peter Rosenblum, Susan Maples

Human Rights Institute

The laws of contract and international commercial relations generally suppose two corporate entities doing business with each other, both seeking profits and answering to shareholders. This makes sense, unless one of the parties is not a corporate entity, but rather a government, answerable to citizens. Even as they conduct business, governments have duties, obligations and interests that go well beyond pure profit maximization. As such, the same secrecy afforded to contracting parties in commercial law is out of place in such contracts. Governments must be held accountable for all contracts they enter, be they for the provision of roads or …


Host’S Dilemma: Rethinking Eu Banking Regulation In Light Of The Global Crisis, Katharina Pistor Jan 2010

Host’S Dilemma: Rethinking Eu Banking Regulation In Light Of The Global Crisis, Katharina Pistor

Faculty Scholarship

One of the main objectives of transnational banking regulation over the past two decades has been the standardization of regulatory practices and the allocation of regulatory powers to minimize the regulatory burden for banks. The resulting division of labor between home and host country regulators strongly favors Home over Host; And the regulatory scope has continued to focus on entities rather than activities. This paper argues that this has created several blind spots in transnational regulation of finance. First, Home is unlikely to monitor and respond to risks that are unique to Host, even though they might emanate from activities …


Mediating Medical Malpractice Lawsuits: The Need For Plaintiff And Physician Participation, Chris Stern Hyman, Carol B. Liebman Jan 2010

Mediating Medical Malpractice Lawsuits: The Need For Plaintiff And Physician Participation, Chris Stern Hyman, Carol B. Liebman

Faculty Scholarship

At this moment in history, tort reform and new approaches to resolving medical malpractice claims are part of the national debate about how to improve health care. Federal funding is available for pilot projects to test new approaches to medical malpractice litigation. There is increased pressure from health care regulators to disclose adverse events and communicate better with patients and their families. These all present opportunities to increase the use of mediation, particularly to address medical malpractice lawsuits and to improve patient safety.

For the past seven years, we have been studying ways in which mediation and mediation skills can …


The Impact Of The Adoption And Safe Families Act On Children Of Incarcerated Parents, Arlene F. Lee, Philip Genty, Mimi Laver Child Welfare League Of America Jan 2010

The Impact Of The Adoption And Safe Families Act On Children Of Incarcerated Parents, Arlene F. Lee, Philip Genty, Mimi Laver Child Welfare League Of America

Faculty Scholarship

On November 9, 1997, President Bill Clinton signed the Adoption and Safe Families Act of 1997 (ASFA) to improve the safety of children, to promote adoption and other permanent homes for children, and to support families. The changes in ASFA are important to ensure the safety of children and increase their likelihood of placement in permanent homes. The change that requires close examination is the timeline for initiating the termination of parental rights (TPR) proceedings. Many people have questioned whether these changes, if applied in their strictest terms, have had a detrimental effect on children of prisoners, because a large …


On The Guise Of The Good, Joseph Raz Jan 2010

On The Guise Of The Good, Joseph Raz

Faculty Scholarship

The chapter examines the main argument for, and the presuppositions of the claim that intentional actions are actions taken in, and because of, a belief that there is some good in them. An analysis of intentional actions, and of action for a (normative) reason, followed by a consideration of a number of objections to the thesis of the Guise of the Good force various revisions and refinements of the thesis yielding a defensible version of it. It is argued that the revised thesis is supported by the same argument that inspired the Guise of the Good from the beginning and …


Close Encounters Of Three Kinds: On Teaching Dominance Feminism And Intersectionality, Kimberlé W. Crenshaw Jan 2010

Close Encounters Of Three Kinds: On Teaching Dominance Feminism And Intersectionality, Kimberlé W. Crenshaw

Faculty Scholarship

I am pleased to be a part of this symposium honoring Catharine MacKinnon's groundbreaking work as a feminist theorist, legal advocate, and global activist. This invitation not only presents the opportunity to examine the interface between dominance theory and intersectionality, but also the occasion to delve further into the vexed rhetorical politics surrounding feminism and antiracism.

By now the fact that there has been a contested relationship between antiracism and feminism is almost axiomatic.1 Yet as with most things that have become matters of common knowledge, there is a risk that generalizations can metastasize into hardened conclusions that obscure rather …


Litigation Under Seqra Declining, Exemption Use Is Rising, Michael B. Gerrard Jan 2010

Litigation Under Seqra Declining, Exemption Use Is Rising, Michael B. Gerrard

Faculty Scholarship

The State Environmental Quality Review Act (SEQRA), the statute that requires the preparation of environmental impact statements (EISs) for discretionary actions by state and local governments that may have a significant effect on the environment, has long been by far the most fertile source of environmental litigation in New York. That is still so, but the volume has declined, probably because much of such litigation grows out of disputes over proposed construction projects, and there are fewer of those in the recent recession.


Defining The Challenge In Implementing Climate Change Policy, Michael B. Gerrard Jan 2010

Defining The Challenge In Implementing Climate Change Policy, Michael B. Gerrard

Faculty Scholarship

When Jonathan Cannon, Michael Vandenbergh, and I started planning this conference last summer, we planned to call it “Implementing Climate Change Legislation.” We assumed that by today a new law aimed at addressing climate change would be in place, or at least would be in the final polishing stage, in the United States. We even imagined that the federal agencies would be rolling up their sleeves to implement not only the new U.S. climate law but also our part of the comprehensive climate pact that the nations of the world had agreed to in Copenhagen.


Model Green Building Ordinance For Municipalities Open For Comment, Michael B. Gerrard Jan 2010

Model Green Building Ordinance For Municipalities Open For Comment, Michael B. Gerrard

Faculty Scholarship

In 2009, the residential and commercial building sector was responsible for more than 50 percent of total annual U.S. energy consumption, 74 percent of total U.S. electricity consumption, and 39 percent of total U.S. greenhouse gas emissions.

There has been a growing movement to encourage “green buildings” – those that generally use water, energy and materials more efficiently than conventional buildings, and utilize design, construction and siting features to reduce their negative environmental impacts.


The Pragmatic Incrementalism Of Common Law Intellectual Property, Shyamkrishna Balganesh Jan 2010

The Pragmatic Incrementalism Of Common Law Intellectual Property, Shyamkrishna Balganesh

Faculty Scholarship

Intellectual property is today thought to be principally of statutory origin. Discussions of the subject invariably revolve around a close scrutiny of the federal statutes involved. Indeed, the frequency with which Congress amends the patent and copyright statutes seems to leave little doubt that it alone determines intellectual property's precise content and coverage. Nevertheless, there exists a rather robust body of state law that is almost entirely the creation of state courts and is directed at creating entitlements in information, ideas, expression, goodwill, one's image, and other related intangibles. These rights regimes are in turn collectively referred to as “common …


Energy Policy For An Economic Downturn: A Proposed Petroleum Fuel Price Stabilization Plan, Thomas W. Merrill, David M. Schizer Jan 2010

Energy Policy For An Economic Downturn: A Proposed Petroleum Fuel Price Stabilization Plan, Thomas W. Merrill, David M. Schizer

Faculty Scholarship

A compelling case can be made for reducing America's consumption of petroleum fuels. Nearly all analysts think that the way to slash consumption of petroleum fuels is through an end-user tax. There is, however, widespread public opposition to higher gasoline taxes. Furthermore, in a recession the appropriate fiscal policy is to cut taxes, not to raise them. This paper proposes a method of stabilizing petroleum fuel prices at a sufficiently high level, without reducing aggregate consumer purchasing power. We introduce a revenue-neutral petroleum fuel price stabilization plan, called the "PFPS" plan for short Under this plan, a government surcharge on …


Introduction, Katherine M. Franke Jan 2010

Introduction, Katherine M. Franke

Faculty Scholarship

Each year, the Center for Gender & Sexuality Law devotes a day- long symposium to the significant contributions of a senior scholar to the literature of gender and/or sexuality law and theory. For our inaugural symposium we were pleased to have selected Martha Nussbaum, the Ernst Freund Distinguished Service Professor of Law and Ethics at the University of Chicago with joint appointments in the Philosophy Department, Law School and Divinity School. Professor Nussbaum’s work spans a daunting terrain. In her work as a classicist and theorist of liberal humanism, she has both explored an ethics of vulnerability and human flourishing, …


Promoting Innovation: The Law Of Publicly Traded Corporations, Merritt B. Fox Jan 2010

Promoting Innovation: The Law Of Publicly Traded Corporations, Merritt B. Fox

Faculty Scholarship

Improving economic welfare requires that society’s scarce savings be allocated among proposed real investment projects in a way that appreciates the prospects of promising new innovations. Corporate and securities law help structure important elements of this process of allocation. This article sketches out an approach based upon a seemingly paradoxical analogy of a market economy’s overall finance process to the way a hierarchical organization gathers and processes relevant bits of information dispersed among many individuals in order to make decisions. It thereby takes advantage of important thinking in communications and organizational theory about how to make organizations sensitive to the …


The Significance Of Conscience, Kent Greenawalt Jan 2010

The Significance Of Conscience, Kent Greenawalt

Faculty Scholarship

Conscience, like most words that describe human experience and recommend human action, has changed its meanings over time and takes on subtly different meanings in different contexts. Since the time of Thomas Aquinas, when conscience referred to moral judgments about action, and our founding era, when “freedom of conscience” dominantly referred to individual religious liberty, our understanding has evolved. In this paper, I concentrate on present usage. My aims are partially descriptive and mainly normative. My hope is that by clarifying various ways the notion of conscience is conceived, I can contribute to a thoughtful elaboration of normative issues …


Fundamental Questions About The Religion Clauses: Reflections On Some Critiques, Kent Greenawalt Jan 2010

Fundamental Questions About The Religion Clauses: Reflections On Some Critiques, Kent Greenawalt

Faculty Scholarship

This essay responds to some major critiques of my work on the religion clauses. The effort has seemed worth undertaking because many issues the critics raise lie at the core of one’s approach to free exercise and nonestablishment, and some of those issues matter greatly for constitutional adjudication more broadly. Like any author, perhaps, my reaction to reading some comments has been that I did not quite say that, but I shall not bore you with these quibbles about how well I explained myself in the past. Rather, I shall try to confront the genuinely basic questions that many of …


A Tale Of Two Paradigms: Judicial Review And Judicial Duty, Philip A. Hamburger Jan 2010

A Tale Of Two Paradigms: Judicial Review And Judicial Duty, Philip A. Hamburger

Faculty Scholarship

What is the role of judges in holding government acts unconstitutional? The conventional paradigm is "judicial review." From this perspective, judges have a distinct power to review statutes and other government acts for their constitutionality. The historical evidence, however, reveals another paradigm, that of judicial duty. From this point of view, presented in my book Law and Judicial Duty, a judge has an office or duty, in all decisions, to exercise judgment in accord with the law of the land. On this understanding, there is no distinct power to review acts for their constitutionality, and what is called "judicial review" …