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2013

Columbia Law School

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Full-Text Articles in Law

Mining Contracts: How To Read And Understand Them, International Senior Lawyers Project, Openoil, Revenue Watch Institute-Natural Resource Governance Institue, Vale Columbia Center On Sustainable International Investment Dec 2013

Mining Contracts: How To Read And Understand Them, International Senior Lawyers Project, Openoil, Revenue Watch Institute-Natural Resource Governance Institue, Vale Columbia Center On Sustainable International Investment

Columbia Center on Sustainable Investment Books

In December 2013, a diverse group of 14 experts from Africa, Asia, North and South America, and Europe worked together for five days to produce a user-friendly guide in English and in French on "Mining Contracts: How to Read and Understand Them," to help policy makers, civil society, citizens, and the media understand the often complex and opaque terms of mining contracts. With increasing calls for contract transparency – and the growing recognition of the importance of the terms of contracts for resource-rich countries – this book explains in layman’s terms the principal features of a contract, compares different approaches to ...


Leveraging Paraguay’S Hydropower For Sustainable Economic Development, Perrine Toledano, Nicolas Maennling Nov 2013

Leveraging Paraguay’S Hydropower For Sustainable Economic Development, Perrine Toledano, Nicolas Maennling

Columbia Center on Sustainable Investment Staff Publications

While internationally Paraguay is known for being the largest hydropower exporter in the world, the domestic economy suffers from regular outages and high system losses. The country is largely dependent on agricultural production, which has led to volatile economic performances in the past resulting from climatic circumstances and commodity price fluctuations. To address these two key policy challenges, the Government of Paraguay has approached The Earth Institute to: 1) explore the potential of a climate risk management system and sustainable agriculture activities to mitigate environmental vulnerability and 2) develop a high-level strategic plan to use Paraguay’s vast hydropower resources ...


Memo To The Obama Administration On The Burma Responsible Investment Reporting Requirements, Kaitlin Y. Cordes, Lisa E. Sachs Sep 2013

Memo To The Obama Administration On The Burma Responsible Investment Reporting Requirements, Kaitlin Y. Cordes, Lisa E. Sachs

Columbia Center on Sustainable Investment Staff Publications

In September 2013, CCSI sent a memo to President Obama and his Administration in response to the first public reports submitted by U.S. companies in compliance with the Burma Responsible Investment Reporting Requirements. The memo applauded the U.S. Government’s efforts to encourage responsible investment in Burma, noting that robust due diligence is essential to ensuring that international investments contribute to sustainable development. Yet the memo also urged the Obama Administration to take steps to strengthen future reporting. In particular, CCSI urged the Administration to issue clarifying guidance that any U.S. investor submitting a report should (1 ...


Mobil V. Canada – Ratcheting Down The Scope Of Treaty Reservations, Lise Johnson Sep 2013

Mobil V. Canada – Ratcheting Down The Scope Of Treaty Reservations, Lise Johnson

Columbia Center on Sustainable Investment Staff Publications

As part of States’ efforts to strike a balance in their international investment agreements (IIAs) between the obligations they assume and the rights and policy space they wish to retain, some adjoin annexes to their treaties to protect their ability to take “Non-Conforming Measures” (NCMs). States have generally: used such annexes to make exceptions to non-discrimination obligations, market access restrictions and performance requirements; have included the ability to grandfather in NCMs existing at the time an IIA enters into force; and have provided for the ability to maintain, amend, and enact new NCMs in specifically identified sectors, sub-sectors, activities, or ...


Cameroon Pastoralists Fight For Their Way Of Life, Kaitlin Y. Cordes Sep 2013

Cameroon Pastoralists Fight For Their Way Of Life, Kaitlin Y. Cordes

Columbia Center on Sustainable Investment Staff Publications

After years of struggles against governments and private parties, the Mbororo-Fulani are gaining international attention. But is this too little too late?


New Uncitral Arbitration Rules On Transparency: Application, Content And Next Steps, Lise Johnson Aug 2013

New Uncitral Arbitration Rules On Transparency: Application, Content And Next Steps, Lise Johnson

Columbia Center on Sustainable Investment Staff Publications

This paper discusses the UNCITRAL Rules on Transparency in Treaty-Based Investor-State Arbitration, which were adopted in August of 2013 and went into effect on April 1, 2014. It draws on negotiating history to elaborate on the content of and purpose of each of the Rules’ provisions, and identifies options for and barriers to applying these Rules in future arbitrations.


Community Development Funds And Agreements In Guinea Under The New Mining Code, Columbia Center On Sustainable Investment Jun 2013

Community Development Funds And Agreements In Guinea Under The New Mining Code, Columbia Center On Sustainable Investment

Columbia Center on Sustainable Investment Staff Publications

Guinea’s 2011 Mining Code introduced a large number of reforms directed to increasing transparency and the contribution of the mining sector to development, including requirements for the establishment of a local development fund and for community development agreements between mining companies and local communities. As part of the legal and fiscal analysis of the gold mining investments in Guinea, CCSI examined how these provisions could be implemented effectively. CCSI produced a report that makes recommendations as to how the Government, mining companies, civil society and communities can work together to maximize the benefits of local development funding in the ...


Great Debate: Mining In Latin America, Lisa E. Sachs Apr 2013

Great Debate: Mining In Latin America, Lisa E. Sachs

Columbia Center on Sustainable Investment Staff Publications

Mining represents a great opportunity for economic growth, especially for emerging economies. It is often seen as the path to prosperity. However, the mining industry is a double edged sword. Countries in Latin America are managing to attract significant foreign investment. In Chile, the extractive sector’s participation in the economy has tripled in the last 10 years, reaching 15% of GDP. In Colombia and Peru, it has doubled to 10% of GDP. The Santos administration in Colombia has made mining one of its top policy priorities.

However, there may be significant downsides to mining, as governments are forced to ...


Shared-Use Infrastructure: A Prickly Partnership Takes Root, Perrine Toledano Jan 2013

Shared-Use Infrastructure: A Prickly Partnership Takes Root, Perrine Toledano

Columbia Center on Sustainable Investment Staff Publications

Only about 30% of Africa has access to electricity, and transport costs in Africa are among the highest in the world. For the World Bank, the annual funding gap for infrastructure investment in Africa is US $31 billion.

This gap however can be filled if the investments of natural resource concessionaires are leveraged and not planned in an enclave model. In resource-rich but infrastructure-poor Africa, natural resource concessionaires have traditionally developed railways, ports and power plants to serve their own needs. Africa has therefore often missed the opportunity of coordinating those large investments with national infrastructure planning and has failed ...


Ask The Experts: Mining, Lisa E. Sachs Jan 2013

Ask The Experts: Mining, Lisa E. Sachs

Columbia Center on Sustainable Investment Staff Publications

How can governments best ensure mining produces broad-based economic development?

At the Vale Columbia Center on Sustainable International Investment at Columbia University, we have identified five “pillars” that are necessary for resource-based sustainable development. Each pillar requires the collaboration of governments, companies, donors and communities.At the Vale Columbia Center on Sustainable International Investment at Columbia University, we have identified five “pillars” that are necessary for resource-based sustainable development. Each pillar requires the collaboration of governments, companies, donors and communities.


Coordination Reconsidered, Richard Briffault Jan 2013

Coordination Reconsidered, Richard Briffault

Faculty Scholarship

At the heart of American campaign finance law is the distinction drawn by the Supreme Court in Buckley v. Valeo between contributions and expenditures. According to the Court, contributions may be limited because they pose the dangers of corruption and the appearance of corruption, but expenditures pose no such dangers and therefore may not be limited. The distinction between the two types of campaign spending turns not on the form – the fact that contributions proceed from a donor to a candidate, while expenditures involve direct efforts to influence the voters – but on whether the campaign practice implicates the corruption concerns ...


"Children Are Different": Constitutional Values And Justice Policy, Elizabeth S. Scott Jan 2013

"Children Are Different": Constitutional Values And Justice Policy, Elizabeth S. Scott

Faculty Scholarship

This essay explores the importance for Eighth Amendment jurisprudence and for juvenile crime regulation of Miller v. Alabama (2012) and two earlier Supreme Court opinions rejecting harsh sentences for juveniles. It argues that the Court has broken new ground in defining juveniles as a category of offenders who are subject to special Eighth Amendment protections. In Miller and in Graham v. Florida (2010) particularly, the Court has applied to juveniles' non-capital sentences the rigorous proportionality review that, for adults, has been reserved for death sentences. The essay then turns to the implications of the opinions for juvenile crime policy, arguing ...


Framing The Prosecution, Daniel C. Richman Jan 2013

Framing The Prosecution, Daniel C. Richman

Faculty Scholarship

Even as we endeavor to give criminal defendants the means and license to raise reasonable doubts – to put investigations on trial – we need to think more about when and how those doubts can be allayed. What tools should we give jurors to assess the alleged holes – the “reasonableness” of an alleged doubt? And how can the prosecution try to mend them? How we answer these questions will affect the value of trials as a systemic regulatory mechanism in a world with very few trials. Sparked by Dan Simon’s work on the “diagnosticity” of criminal trials, this essay proposes a ...


Beccaria's On Crimes And Punishments: A Mirror On The History Of The Foundations Of Modern Criminal Law, Bernard E. Harcourt Jan 2013

Beccaria's On Crimes And Punishments: A Mirror On The History Of The Foundations Of Modern Criminal Law, Bernard E. Harcourt

Faculty Scholarship

Beccaria’s treatise "On Crimes and Punishments" (1764) has become a placeholder for the classical school of thought in criminology, for deterrence-based public policy, for death penalty abolitionism, and for liberal ideals of legality and the rule of law. A source of inspiration for Bentham and Blackstone, an object of praise for Voltaire and the Philosophies, a target of pointed critiques by Kant and Hegel, the subject of a genealogy by Foucault, the object of derision by the Physiocrats, rehabilitated and appropriated by the Chicago School of law and economics – these ricochets and reflections on Beccaria’s treatise reveal multiple ...


On Waldron's Critique Of Raz On Human Rights, Joseph Raz Jan 2013

On Waldron's Critique Of Raz On Human Rights, Joseph Raz

Faculty Scholarship

Prof. Waldron has recently published a paper criticising the views of Rawls and Raz on human rights. It is pointed out that some supposed criticism are nothing more than observations on conditions that any account of rights must meet, and that Waldron objections to Raz are due to misunderstanding his thesis and its theoretical goal. The short comment tries to clarify that goal.


The Collapse Of The Harm Principle Redux: On Same-Sex Marriage, The Supreme Court's Opinion In United States V. Windsor, John Stuart Mill's Essay On Liberty (1859), And H. L. A. Hart's Modern Harm Principle, Bernard E. Harcourt Jan 2013

The Collapse Of The Harm Principle Redux: On Same-Sex Marriage, The Supreme Court's Opinion In United States V. Windsor, John Stuart Mill's Essay On Liberty (1859), And H. L. A. Hart's Modern Harm Principle, Bernard E. Harcourt

Faculty Scholarship

In an article published in 1999, titled The Collapse of the Harm Principle, I argued that the harm principle, originally articulated in John Stuart Mill’s essay On Liberty (1859), had collapsed under the weight of its own success and no longer serves, today, as a limiting principle on the legal enforcement of morality. Several readers raised forceful questions about the relationship between Mill’s original essay and the harm principle, as well as about the continuing vitality of Mill’s argument. In this article, I return to my original argument to draw an important distinction and clarify a central ...


Idiosyncratic Risk During Economic Downturns: Implications For The Use Of Event Studies In Securities Litigation, Edward G. Fox, Merritt B. Fox, Ronald J. Gilson Jan 2013

Idiosyncratic Risk During Economic Downturns: Implications For The Use Of Event Studies In Securities Litigation, Edward G. Fox, Merritt B. Fox, Ronald J. Gilson

Faculty Scholarship

We reported in a recent paper that during the 2008-09 financial crisis, for the average firm, idiosyncratic risk, as measured by variance, increased by five-fold. This finding is important for securities litigation because idiosyncratic risk plays a central role in event study methodology. Event studies are commonly used in securities litigation to determine materiality and loss causation. Many bits of news affect an issuer’s share price at the time of a corporate disclosure that is the subject of litigation. Because of this, even if an issuer’s market–adjusted price changes at the time of the disclosure, one cannot ...


The Power To Threaten War, Matthew C. Waxman Jan 2013

The Power To Threaten War, Matthew C. Waxman

Faculty Scholarship

Existing legal scholarship about constitutional war powers focuses overwhelmingly on the President's power to initiate military operations abroad and the extent to which that power is constrained by Congress. It ignores the allocation of legal power to threaten military force or war, even though threats – to coerce or deter enemies and to reassure allies – is one of the most important ways in which the United States government wields its military might. This paper fills that scholarly void, and draws on recent political science and historical scholarship to construct a richer and more accurate account of the modern presidency's ...


Courts Uniformly Support Climate Science And Scientists, Michael Gerrard Jan 2013

Courts Uniformly Support Climate Science And Scientists, Michael Gerrard

Faculty Scholarship

Viewers of certain television networks, readers of certain newspapers, and anyone visiting Capitol Hill would come away with the impression that there are serious questions about whether climate change is occurring and, if it is, whether it is mostly caused by human activity. One place where there are few such questions is the courts. In fact it appears that (with one lone exception in a dissent) not a single U.S. judge has expressed any skepticism, in a written opinion or dissent, about the science underlying the concern over climate change. To the contrary, the courts have uniformly upheld this ...


Becker And Foucault On Crime And Punishment – A Conversation With Gary Becker, François Ewald, And Bernard Harcourt: The Second Session, Gary S. Becker, Francois Ewald, Bernard E. Harcourt Jan 2013

Becker And Foucault On Crime And Punishment – A Conversation With Gary Becker, François Ewald, And Bernard Harcourt: The Second Session, Gary S. Becker, Francois Ewald, Bernard E. Harcourt

Faculty Scholarship

In his 1979 lectures at the Collège de France, The Birth of Biopolitics, Michel Foucault discussed and analyzed Gary Becker’s economic theory of crime and punishment, originally published in The Journal of Political Economy in 1968 under the title “Crime and Punishment: An Economic Approach.” In this historic, second encounter at the University of Chicago, Gary Becker responds to Foucault’s lectures and possible critical readings of his writings on crime and punishment, in conversation with Professors François Ewald (who was, at the time in 1979, Foucault’s assistant at the Collège and one of Foucault’s closest interlocutors ...


Freedom Of Contracts, Hanoch Dagan, Michael Heller Jan 2013

Freedom Of Contracts, Hanoch Dagan, Michael Heller

Faculty Scholarship

“Freedom of contracts” has two components: (1) the familiar freedom to bargain for terms within a contract and (2) the long-neglected freedom to choose from among contract types. Theories built on the first freedom have reached an impasse; attention to the second points toward a long-elusive goal, a liberal and general theory of contract law. This theory is liberal because it develops an appealing conception of contractual autonomy grounded in the actual diversity of contract types. It is general because it explains how contract values – utility, community, and autonomy – properly relate to each other across contract types. Finally, it is ...


Pathetic Argument In Constitutional Law, Jamal Greene Jan 2013

Pathetic Argument In Constitutional Law, Jamal Greene

Faculty Scholarship

Pathetic argument, or argument based on pathos, persuades by appealing to the emotions of the reader or listener. In Aristotle’s classic treatment, it exists in parallel to logical argument, which appeals to deductive or inductive reasoning, and ethical argument, which appeals to the character of the speaker. Pathetic argument is common in constitutional law, as in other practical discourse — think of “Poor Joshua!” — but existing accounts of constitutional practice do not provide resources for understanding the place of and limitations upon such appeals when they appear in judicial opinions. This Article begins to fill that gap. Pathetic argument is ...


On Normativity And Responsibility: Responses, Joseph Raz Jan 2013

On Normativity And Responsibility: Responses, Joseph Raz

Faculty Scholarship

Contains responses to comments by Chang, Hestein and Heuer on "From Normativity to Responsibility". The paper responds to various criticisms especially about methodology, the bearing of a secure area of competence on responsibility, the univocality of 'reasons', the relations of value and practical reasons, the scope of rational powers, the function of reasons to be rational, and most extensively about following reasons and the distinction between standard and non-standard reasons (where Heuer has pointed out some deficiencies in the discussion of the matter in the book).


Comments On Alrc Discussion Paper 79, Copyright And The Digital Economy, June M. Besek, Jane C. Ginsburg, Philippa Loengard Jan 2013

Comments On Alrc Discussion Paper 79, Copyright And The Digital Economy, June M. Besek, Jane C. Ginsburg, Philippa Loengard

Faculty Scholarship

We provide these comments in connection with the Australian Law Reform Commission’s ongoing study of copyright and the digital economy, and in particular its request for comments on the recommendations put forth in its Discussion Paper 79 (June 2013). We focus on US law, and how the US experience bears on the possibility of an open-ended uncompensated "fair use" type exception in Australia, and other related issues.

The fair use doctrine in the US provides great flexibility, but that flexibility in many instances comes at the cost of certainty and predictability. We are not suggesting that reasonable judgments cannot ...


Extraterritorial Financial Regulation: Why E.T. Can't Come Home, John C. Coffee Jr. Jan 2013

Extraterritorial Financial Regulation: Why E.T. Can't Come Home, John C. Coffee Jr.

Faculty Scholarship

Systemic risk poses a classic "public goods" problem. All nations want systemic stability, but most would prefer that other nations pay for it, allowing them to "free ride." Moreover, because global financial institutions can park their higher risk operations almost anywhere, some nations can profit from regulatory arbitrage by keeping their regulatory controls laxer than in the more financially developed nations (which bear the principal share of the costs from financial contagion). As a result, the free riders do not need to internalize the full costs of systemic risk, but profit from imposing costs on others.

Under these conditions, all ...


Machine Speech, Tim Wu Jan 2013

Machine Speech, Tim Wu

Faculty Scholarship

Computers are making an increasing number of important decisions in our lives. They fly airplanes, navigate traffic, and even recommend books. In the process, computers reason through automated algorithms and constantly send and receive information, sometimes in ways that mimic human expression. When can such communications, called here “algorithmic outputs,” claim First Amendment protection?


Three Discount Windows, Kathryn Judge Jan 2013

Three Discount Windows, Kathryn Judge

Faculty Scholarship

It is widely assumed that the Federal Reserve is the lender of last resort in the United States and that the Fed’s discount window is the primary mechanism through which it fulfills this role. Yet, when banks faced liquidity constraints during the 2007–2009 financial crisis (the Crisis), the discount window played a relatively small role in providing banks much needed liquidity. This is not because banks forewent government backed liquidity; rather, they sought it elsewhere. First, they increased their reliance on collateralized loans, known as advances, from the Federal Home Loan Bank system, a little known government sponsored ...


Agency Capitalism: Further Implications Of Equity Intermediation, Ronald J. Gilson, Jeffrey N. Gordon Jan 2013

Agency Capitalism: Further Implications Of Equity Intermediation, Ronald J. Gilson, Jeffrey N. Gordon

Faculty Scholarship

This chapter continues our examination of the corporate law and governance implications of the fundamental shift in ownership structure of U.S. public corporations from the Berle-Means pattern of widely distributed shareholders to one of Agency Capitalism – the reconcentration of ownership in intermediary institutional investors as record holders for their beneficial owners. A Berle-Means ownership distribution provided the foundation for the agency cost orientation of modern corporate law and governance – the goal was to bridge the gap between the interests of managers and shareholders that dispersed shareholders could not do for themselves. The equity intermediation of the last 30 years ...


The Moral Significance Of Economic Life, Andrzej Rapaczynski Jan 2013

The Moral Significance Of Economic Life, Andrzej Rapaczynski

Faculty Scholarship

Much of the modern perception of the role of economic production in human life – whether on the Left or on the Right of the political spectrum – views it as an inferior, instrumental activity oriented toward self-preservation, self-interest, or profit, and thus as essentially distinct from the truly human action concerned with moral values, justice, and various forms of self-fulfillment. This widely shared worldview is rooted, on the one hand, in the Aristotelian tradition that sees labor as a badge of slavery, and freedom as lying in the domain of politics and pure (not technical) knowledge, and, on the other hand ...


Trial By Preview, Bert I. Huang Jan 2013

Trial By Preview, Bert I. Huang

Faculty Scholarship

It has been an obsession of modern civil procedure to design ways to reveal more before trial about what will happen during trial. Litigants today, as a matter of course, are made to preview the evidence they will use. This practice is celebrated because standard theory says it should induce the parties to settle; why incur the expenses of trial, if everyone knows what will happen? Rarely noted, however, is one complication: The impact of previewing the evidence is intertwined with how well the parties know their future audience — that is, the judge or the jury who will be the ...