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Liability Considerations for Marine Carbon Dioxide Removal Projects in U.S. Waters
Full text linkScientists have identified a number of land- and ocean-based carbon dioxide removal (“CDR”) approaches. Ocean-based approaches, also known as marine CDR, hold great potential for uptake and sequestration of carbon dioxide. However, controlled field trials in the ocean are needed to better understand the efficacy and impacts of several marine CDR approaches. Legal considerations will have a major bearing on whether, when, where, and how such field research goes forward. Previous studies have analyzed the potential international and domestic legal framework applicable to marine CDR research and subsequent deployment (if that is ultimately deemed appropriate). However, relatively little research has analyzed the potential for this legal framework to impose liability on marine CDR project proponents (e.g., for environmental harms resulting from their activities). This report begins to fill that gap with regard to projects in U.S. ocean waters by analyzing potential liability for marine CDR project proponents under U.S. federal statute, and federal and state tort law.
Application of statutory and tort liability to marine CDR project proponents is complex and uncertain. Further, the existing liability frameworks seek to restrict environmentally harmful activities, but do not promote potential environmental benefits. A different liability framework may better be able to balance these competing concerns. This paper concludes by analyzing three existing environmental liability regimes used in other sectors that may serve as models for a new liability regime to govern marine CDR
Who Benefits from Partner Flexibility?
No full textPartnerships (including LLCs) account for more than one-third of US business profits. A key feature they offer owners is the ability to allocate income and losses flexibly across partners rather than strictly in proportion to equity shares, which can reduce taxes if partners have different tax situations. Using anonymized tax records, I estimate over 100 billion of net tax benefits from carried interest and similar profit interest arrangements relative to ordinary compensation of service partners between 2011-2020
(De)Funding Family Separations
No full textFederal foster care funding exists in tension with foundational family law principles. The law protects family integrity: the state may only separate parents and children in extreme cases, and, when it does, the state must work to reunify families. Yet the federal funding system directs billions of federal dollars to support CPS agencies and pay subsidies to foster parents, adoptive parents, and guardians. It does so via an open-ended entitlement, so that the more families a state separates, the more federal funds it receives. This system makes it relatively cheaper for CPS agencies to take custody of children, incentivizes states to support the permanent destruction of families and creation of new ones through terminations of parental rights and subsequent adoptions, and diminishes state courts’ role in checking state agency power by enlisting them in efforts to maximize federal funding. The federal funding system also incentivizes families to agree to parent-child separations as a condition of aiding kinship caregivers and encourages foster parents to seek permanent destruction of families and new permanent custody arrangements.
The federal funding system’s history and operation demonstrate how it serves to divert public benefits from parents to CPS agencies and kinship and non-kinship foster parents, adoptive parents, and guardians. Any reforms need to enable parents to receive necessary public benefits — which an increasing body of research shows limits child maltreatment and CPS agency involvement — and provide aid to kinship caregivers without requiring family separation or incentivizing family destruction.
This Article proposes a range of reforms to align financial incentives with the law’s commitment to family integrity and thus push the system towards separating families only when necessary. First, it proposes a set of incremental reforms to limit the worst incentives of the present system. Second, it proposes a mechanism to provide support to kinship caregivers without requiring the separation of parents and children. Third, it advocates a fundamental rethinking of the federal funding system: Congress should repeal the open-ended entitlement nature of the federal funding system and direct similar funds to states to invest in efforts to prevent child maltreatment and prevention activities or foster care costs
Social Media Participation and Scholarly Success in Law
No full textUsing a novel dataset on Twitter activity as well as a novel corpus of law journal publications, this paper examines the impact of social media activity on the scholarly success of U.S. law professors. We find that joining Twitter increases citation counts by an average of 22% per year and improves article placements by up to 10 ranks for law professors, relative to a synthetic control group. These positive returns apply across nearly all classes of scholars and are magnified for those who post frequently about their own work. The identified citation boost would be even larger than 22% if it were not partially offset by a decline in citations to articles published pre-Twitter. Overall, our results suggest that social media participation yields concrete benefits in the legal academy — indeed, benefits outstripping those that prior studies have identified in other disciplines — along with a number of potential downsides
Leaving Delaware? The Essential Role of Specialized Corporate Courts
No full textFollowing the Delaware Court of Chancery’s invalidation of Elon Musk’s fifty-six- billion-dollar compensation package, Tesla moved its incorporation from Delaware to Texas. Shortly thereafter, Delaware’s legislature, seeking to protect Delaware’s dominant incorporation position, passed the most sweeping corporate law amendments in fifty years.
Both supporters of Musk and defenders of Delaware’s judiciary have accused each other of partisanship, but neither side has addressed the central question: What is the role of specialized corporate courts?
This Essay presents a novel theory of why such courts are necessary. Corporate disputes are distinct because they arise within ongoing relationships between shareholders and management, governed by incomplete contracts. To address managerial disloyalty or incompetence, shareholders can replace managers or sue for breaches of fiduciary duties. In this dynamic, courts become third-party participants in these incomplete contracts when they decide which claims merit judicial intervention, and which do not. Judicial review in corporate law thus culminates in claim-dismissal specialization.
The business judgment rule, this Essay reveals, is designed to enable specialized courts to limit intervention to conflicts of interest while referring mismanagement cases to shareholders. This Essay demonstrates that Delaware’s judiciary has largely fulfilled its intended role while highlighting the constraints it faces regarding both shareholders and legislatures in correcting errors. Meanwhile, with its recent home reincorporation in Texas, Tesla can gain insulation from hostile takeovers and activism, prioritizing long-term business strategies and the broader community. Finally, this Essay provides the policy blueprint for over twenty other states that have already adopted specialized corporate courts
The Market Inside the Market: Odd-Lot Quotes
No full textWe show current market practices relating to odd-lot quotes create a large “inside” market where better prices routinely exist relative to the National Best Bid or Offer. We show that odd-lot quotes play a price discovery role, and these quotes provide valuable information to traders with access to proprietary data feeds. Using a XGBoost machine learning algorithm that uses odd-lot data to predict future prices, we demonstrate a simple and profitable trading strategy. We argue the SEC’s proposed round-lot redefinition reduces — but does not eliminate — the high incidence of superior odd-lot quotes within the NBBO
Regulation of Ocean Alkalinity Enhancement in Washington State
Full text linkThis paper focuses on one commonly-discussed ocean carbon dioxide removal approach, ocean alkalinity enhancement (“OAE”), which involves adding alkaline substances to ocean waters in order to increase their ability to uptake carbon dioxide from the atmosphere. OAE also has the potential to mitigate ocean acidification, which has been worsening globally due to climate change, and has threatened marine life and industries in places like Washington State.
There is significant interest in pursuing OAE off the coast of Washington state. This paper examines the legal framework for OAE projects in Washington State. As we explain, OAE projects conducted in near-shore areas off Washington’s coast may be regulated under various environmental and other laws adopted at the local, tribal, state, and federal levels
Working to Death: Labor Law in the 100 Year Life
Full text linkWithout significant changes in labor law, the 100-year life will almost certainly be defined by deep inequities. Working-class people, and workers of color in particular, are least likely to enjoy extended life spans. And if they do live longer, they are unlikely to enjoy a leisurely retirement in which they decide how they spend their extra years. Instead, they will face more toil and precarity. This chapter imagines a different future. It asks: What would the 100-year life look like if working people had a greater hand in shaping it? What would a legal regime look like that gave working people power to affect decisions about how work is structured and how resources are distributed in the era of the 100-year life? How might we reimagine labor law for a more just and equitable 100-year life
Exorcising Hobbes\u27s Ghost: A Future for Constitutional and International Law
Full text linkDaryl Levinson wants to liberate constitutional law from the ghost of Thomas Hobbes. More than 350 years ago, Hobbes advanced a conception of law that, for all the efforts to move past it, continues to resonate. In the strictest iteration of the Hobbesian conception, law cannot exist apart from Leviathan, a sovereign state that is the “sole source of legal authority” in a defined territory. As the only possible source of law, Leviathan cannot itself be subject to law. “[I]t exercise[s] legally limitless power over its citizens and interact[s] with other Leviathans in a lawless international arena”. It is also the source of “supreme coercive force” in its territory. This unique combination — the absolute authority to issue binding commands for its subjects to follow, plus the capacity to use overriding coercion against those who might stray — is, in the Hobbesian conception, necessary for law to work
Political Threads in Legal Tapestry: A Computational Analysis of Executive Branch Legal Interpretation, 1934–2022
Full text linkHow does the push and pull between law and politics shape the work of executive branch lawyers charged with providing “neutral” interpretations of the law? To shed light on this longstanding question, this Article undertakes the first large-scale computational analysis of legal interpretation in the executive branch of the United States federal government. Using a new dataset comprised of the texts of 12,879 pages of opinions issued by the Office of Legal Counsel (OLC) in the Department of Justice (DOJ), I use machine learning methods to explore markers of partisanship and ideology in these high-profile executive branch decisions.
Several important findings emerge from this analysis. Broadly, I detect a significant partisan gap in the language used by the OLC. Yet this gap appears to have experienced limited growth in recent years, suggesting some degree of disconnect between the OLC and the broader, increasingly polarized political environment. Focusing on more fine-grained distinctions in the use of specific words and phrases, I find that Democrats and Republicans have differed along a number of salient dimensions, including the types of legal arguments invoked, substantive policy-related language, and institutional issues involving the separation of powers. One of the sharpest distinctions relates to executive power, with Republicans being more likely to adopt language associated with expansive presidential authority. I also find evidence that Republicans have more closely associated executive power with various markers of authoritarianism, such as language related to violence, the armed forces, and nationalism. But neither party appears to have consistently associated executive power with markers of democracy more than the other, complicating this picture.
These findings have important implications for law and politics. To start, the existence of significant partisan differences in the OLC’s language use casts doubt on the prospect that high-ranking executive branch lawyers will act as “neutral expositors” when rendering legal opinions. At the same time, the apparent disconnect from broader trends in polarization arguably offers some sliver of hope for those who would prefer neutrality. Another issue that has attracted both scholarly and popular attention relates to the role of executive branch lawyers in safeguarding against — or alternatively facilitating — democratic backsliding. My results highlight the risks of relying on executive branch lawyers to uphold constitutional guardrails against presidential overreach, especially amidst attempts by certain political actors to increase politicization within the DOJ. Such concerns underscore the potential importance of other institutions in preserving democratic norms