SelectedWorks @ Widener University Commonwealth Law School
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The Value of Constitutional Environmental Rights and Public Trusts
No full textAs part of the modern environmental movement of the 1970s, five states (Hawaii, Illinois, Massachusetts, Montana, and Pennsylvania) adopted constitutional amendments recognizing a right to a quality environment, a public trust for public natural resources, or both. Half a century later, there is renewed interest in constitutional environmental rights, inspired in no small part by the failure of existing laws to adequately address the climate crisis. A sixth state (New York) recognized a constitutional right to a quality environment in 2021, and more than a dozen states are considering such amendments. Still, the great majority of environmental protection at the state level is accomplished by statutes and regulations. In that context, what specific value do constitutional provisions contribute to environmental and natural resources protection?This Article attempts to answer that question for U.S. states, based on judicial decisions in these states. These provisions can contribute value in at least three ways, depending on how they are written and how courts interpret and apply them. First, constitutional environmental rights and public trusts limit governmental authority to act contrary to their provisions. They can be the basis for invalidating inconsistent statutes, regulations, and other government actions. They can be used in a variety of ways to improve access to the courts, and they have been used to broaden and deepen protection for public natural resources beyond the protection accorded under traditional public trust law. Second, they provide additional authority for governmental efforts to protect the environment and natural resources. Third, they can provide the basis for legal actions against private parties.Constitutional environmental rights and public trusts are not a silver bullet for all environmental problems. But they can add value to a state’s environmental and natural resources protection effort in a rich variety of ways
A Primer on Securities Lending and SEC Rule 10c-1a
No full textSecurities lending was overdue for regulatory rules that promote more transparency for a traditionally opaque market. The impact of Rule 10a-1c will prove to be transformative as the crucial economic terms for securities loans such as the amount of the fee or the rebate are reported and disclosed publicly
Markham’s Opus Remembering the Past—Watching It Repeat From the Great Recession to the Covid-19 Pandemic: A Financial History of the United States 2010–2020 (by Jerry W. Markham 2022)
No full textProfessor Jerry Markham has added another leg to his now seven volume opus on the financial history of the United States.1 Volume 7, entitled From the Great Recession to the Covid-19 Pandemic: A Financial History ofthe United States 2010-2020, is an essential explication of a tumultuous decade. It brings the serious reader an exhausting and thorough recounting of a paradoxical time of booms and busts. Markham recounts the picking up of financial pieces from the Great Recession, the profiting from the stock market boom of the Trump years, and finally chronicles the deadly and equally fiscally disastrous Covid-19 pandemic. Like the previous volumes, the book details the rich, fascinating, rocky, unpredictable, and volatile U.S. financial markets that have characterized the country’s financial history since its founding. An important unstated theme that emerges from this andMarkham’s other volumes is that no matter how much we remember the financial past, we appear to be condemned to repeat it, albeit in different flavors, different participants, and in different ways
Pledging Movable Property in Saudi Arabia: Unleashing Secured Lending
No full textSaudi Arabia has created much needed legal certainty over pledging personal property with the issuance of the royal decree entitled “Securing Rights with Movable Property Law” (the 2020 Movable Property Decree”), also referred to as the Moveable Assets Security Law or MASL. The 2020 Movable Property Decree incorporates the best and most innovative approaches and frameworks from other jurisdictions for secured lending. The 2020 Movable Property Decree has enormous potential to help achieve the results of Vision 2030 for Saudi Arabia. Firms should consider entering into the different forms of secured lending transactions that are expressly covered by the 2020 Movable Property Decree. To add legal certainty, regulators should consider expressly clarifying and confirming that participation interests in limited liability companies should be characterized as movable property, making them eligible to be pledged. Finally, Saudi Arabia should consider expressly allowing firms to pledge intellectual property as security for their obligations
Decarbonizing Constitutions
No full textThe threat of climate change demands far-reaching, systematic changes to the global economy—and similar changes to how governments around the world set environmental policies. In recent years, many environmental policymakers have developed plans to “decarbonize” the economy. These plans provide detailed, sector-specific plans for how the latest scientific consensus on climate change can be incorporated into the policymaking process and for how the Sustainable Development Goals can be achieved. But articulating the policies is one thing—actually setting them is another
We Are All Sustainability Lawyers Now
No full textAs this article explains, sustainable development grows out of environmental and natural resources law, but it is different in many ways. American environmental lawyers, like most Americans, tend to see sustainable development through the lens of environmental law and the overall policy it represents, and thus miss the transformative potential of this framework. Sustainable development also does not have the kind of “heft” or visibility environmental law does because so much of it comes from international conferences and agreements that are not considered “law.”If the United States remains stuck in seeing environmental protection largely or entirely through the lens of environmental law, or even environmental and energy law, we are not going to get the environmental protection we need. Nor are we going to get the kind of economic development, social wellbeing, and peace and security that will be essential in the decades to come. As other countries, such as many in Europe as well as China and Japan, closely focus on coordinating across environmental, economic, and social goals, our own myopia will likely put the U.S. at a long-term competitive disadvantage.What needs to be done to achieve a sustainable America? This article describes the many specific recommendations for action published by the Environmental Law Institute over three decades. They make clear that while all of us have a role to play in achieving a sustainable society, regardless of where we live, what kind of work we do, and whatever our skills and abilities, environmental lawyers in particular need to reimagine ourselves as sustainability lawyers
The Role of Lawyers, Bar Associations, and Law Societies in Combatting Climate Change
No full textLawyers and bar associations have a critical role to play in activating decarbonization and adaptation, and creating a more climate-conscious legal practice. The American Bar Association (ABA) has been working with the International Bar Association (IBA), the Brazilian Bar Association (OAB), and the Law Society of England and Wales (LSEW) over the past two years to discuss the role of lawyers in combatting climate change and to share best practices. The authors of this article represented these organizations in this work. This work includes joint programming at the 27th annual meeting of the Conference of the Parties to the U.N. Climate Change Convention (COP 27) in Sharm el-Sheikh, Egypt in November 2022, and at COP 28 in Dubai, United Arab Emirates, in December 2023. This article explains the need for climate-conscious law practice, and describes what bar associations and law societies are already doing and plan to do to foster more climate-conscious law practice
Good Intentions: Administrative Fiat and the General Welfare Exclusion
No full textSince its introduction in 1913, the federal income tax has viewed income expansively, subjecting virtually all types of enrichment as gross income unless Congress explicitly exempted the income from taxation. But in the income tax’s second decade, the Bureau of Internal Revenue created an exception to the broad reach, an exception not grounded in any type of Congressional enactment. The Bureau’s practice of excluding certain benefits began innocuously in the late 1930s by excluding certain social security benefits from gross income. Over the decades, the IRS has used what it now refers to as the “general welfare exclusion” to exclude from gross income everything from subsistence benefits to payments made to preserve historic buildings. Confronted with difficult questions surrounding poverty and ability to pay, the general welfare exclusion has provided a way for the IRS to resolve complex and unanticipated questions about whether certain government welfare benefits constitute gross income.The general welfare exclusion, however, relies upon an enigmatic foundation of administrative rulings and decisions completely unhooked from any statutory authority or direction. While this administratively-created general welfare exclusion is broad and affects tens of millions of taxpayers, it nonetheless has been largely overlooked by taxpayers, tax scholars, and even legislators.This Article does three things. First, it comprehensively traces the development and evolution of the general welfare exclusion. Second, it highlights the problems created by the ad hoc nature and lack of tether to any legislative authority. Third, it provides a path by which the general welfare exclusion can continue to benefit low-income taxpayers while reducing the complexity and overreach of the IRS
Blockchain Real Estate and NFTs
No full textNon-fungible tokens (popularly known as NFTs) and blockchains are frequently promoted as the solution to a multitude of property ownership problems. The promise of an immutable blockchain is often touted as a mechanism to resolve disputes over intangible rights, notably intellectual property rights, and even to facilitate quicker and easier real estate transactions.In this Symposium Article, we question the use of distributed ledger technologies as a method of facilitating and verifying the transfer of physical assets. As our example of an existing transfer method, we use real property law, which is characterized by centuries-old common law rules regarding fractionalized ownership and local land records that still, in many jurisdictions, rely on paper. We explain the history of real property title protection and then identify the problems with the existing system. We then compare the extant system (and its problems) with what blockchain could offer, concluding that a blockchain system would provide few, if any, benefits.That said, we concede that tracking and transferring ownership of certain rights—specifically, purely intangible rights—is a long-standing legal problem that begs for resolution. We focus on ownership signals, and contrast ownership of physical assets—which is broadcast in part by manual possession in addition to, in the real estate realm, recording—and ownership of intangible assets, which cannot be possessed in a way that easily gives a signal to the entire world that the possessor is the owner. Because of that difference, we conclude that the true use case for NFTs and distributed ledgers is in tracking and verifying ownership of intangibles
A Lack of Uniformity, Compounded, in Immigration Law
No full textThe Administrative Procedure Act is known for bringing standardization to federal agency behavior. The APA’s framework for adjudication, however, is lax and incomplete. It provides standards, but only meaningfully for formal adjudication, and Congress rarely requires agencies to follow the APA’s formal adjudication procedures. The APA, therefore, expressly allows for nonuniform adjudication in that it requires little of the informal adjudication that makes up the lion’s share of agency adjudication.This lack of uniformity in adjudication is prominent in immigration law. When federal agencies adjudicate whether to remove (deport) an individual from the United States, those agencies act pursuant to the Immigration and Nationality Act (INA) and not the APA. The INA establishes removal adjudication before an immigration judge. The lack of uniformity is compounded in immigration law, however, because most removals are achieved not through the INA’s immigration judge procedures but rather through various diversions from immigration court. These diversions provide fewer procedural protections and deviate from the supposed standard of a hearing before an immigration judge. In practice, there are no centralized, uniform procedures for removal adjudication. The INA theoretically provides a substitute North Star in place of the APA, but in practice the INA’s immigration court procedures only apply to a minority of cases.This phenomenon in immigration law raises questions about the strength of the APA and the value of uniformity in administrative law. If the APA’s aim was to improve adjudication, it has failed in immigration law. The removal adjudication system is extremely dysfunctional. Removal adjudication does not have the constitutional-like, uniform standards it desperately needs