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Liability Considerations for Marine Carbon Dioxide Removal Projects in U.S. Waters
Get PDFScientists 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
Taxes and Tournaments
No full textWhat is the best way to reduce economic inequality? Economists, lawyers, political philosophers, and politicians have pondered this question for decades. Yet there is another group of savvy and highly motivated individuals who have been thinking about redistribution for just as long. Commissioners of the National Football League, the National Basketball Association, the National Hockey League, and Major League Baseball, together with team owners and player unions, have been inventing and reinventing ways to redistribute resources, and they continue to do so today. The same is true of the President of National Collegiate Athletic Association, along with the heads of the Big Ten, Big Twelve, and other powerful athletic conferences. This Article asks what we can learn from their experiences.
The answer, it turns out, is that we can learn quite a bit. Key tax policy questions —whether it is better to have one tax base or many, whether non-tax rules should take distributional effects into account, whether it is better to redistribute in cash or in kind, whether redistribution should take place at the national or local level, and whether predistribution is superior to redistribution — all arise in major sports competitions. Running sports tournaments, it turns out, has more than a little in common with running a tax-and-transfer system. And the general approach reflected in the design of real-world tax systems and professional sports tournaments turns out to be the same: Adopt many plausible solutions instead of searching for a perfect one
Towards Effective Discrimination Testing for Generative AI
No full textGenerative AI (GenAI) models present new challenges in regulating against discriminatory behavior. In this paper, we argue that GenAI fairness research still has not met these challenges; instead, a significant gap remains between existing bias assessment methods and regulatory goals. This leads to ineffective regulation that can allow deployment of reportedly fair, yet actually discriminatory, GenAI systems. Towards remedying this problem, we connect the legal and technical literature around GenAI bias evaluation and identify areas of misalignment. Through four case studies, we demonstrate how this misalignment between fairness testing techniques and regulatory goals can result in discriminatory outcomes in real-world deployments, especially in adaptive or complex environments. We offer practical recommendations for improving discrimination testing to better align with regulatory goals and enhance the reliability of fairness assessments in future deployments
Competence-Competence, Delegation, and the AAA/ICDR Rules
No full textIn 2021 and 2022, the American Arbitration Association (AAA) and the International Centre for Dispute Resolution (ICDR) amended their arbitration rules to address a “potential controversy” said to be caused by the Restatement of the U.S. Law of International Commercial and Investor-State Arbitration. The “potential controversy” is over whether the rules providing that arbitrators have “the power to rule on [their] own jurisdiction” should be interpreted as delegation clauses — that is, as “clearly and unmistakably” delegating exclusive authority to resolve jurisdictional challenges to the arbitrators instead of the court. Most courts have so interpreted the rules.
By contrast, the Restatement interprets the rules as codifying competence-competence doctrine rather than constituting delegation clauses. Under the Restatement interpretation, the rules make it clear that if a party challenges the arbitrators’ authority in arbitration, the arbitrators do not have to suspend the arbitration in order for a court to decide the challenge. But the rules do not exclude the authority of a court to decide jurisdictional challenges raised first in a court proceeding.
The 2021/2022 amendments, which added “without any need to refer such matters first to a court,” simply state what was already implicit in the rules: that the arbitrators’ authority to rule on their own jurisdiction in matters before them means the arbitrators do not “need to refer such matters first to a court.” As such, it reinforces rather than rejects the Restatement interpretation of the rules as codifying competence-competence doctrine rather than constituting delegation clauses
AI Companions and the Lessons of Family Law
No full textVirtual friends and lovers powered by artificial intelligence are rapidly moving to the center of our emotional and social lives. Millions of people turn to AI companions every day for conversation, romance, sexual intimacy, therapy, and education. AI companionship holds promise, potentially reducing loneliness, supporting people without access to mental health treatment, helping students learn, and offering a judgment-free space for sensitive conversations. But AI companionship also raises significant concerns. The technology\u27s addictiveness may exacerbate loneliness and can undermine human relationships. Therapy bots may prove more harmful than helpful. AI companions can be emotionally abusive. And their access to the most intimate aspects of users\u27 lives poses distinct privacy challenges.
As lawmakers and policy experts reckon with the benefits and serious risks of AI companionship, they must account for the distinctive aspects of AI companionship. Unlike interacting with other forms of AI — being driven in an autonomous vehicle, say, or getting help with coding — people are in a relationship with their AI companion. Any regulatory approach must address this relationality, especially the human drive to attach to others and the vulnerability that comes with that attachment.
Legal scholars have long argued that the regulation of technology must account for relationality. This Article demonstrates that family law — the law of relationships — is a ready means to do so. As a foundational matter, any effort to regulate AI companionship must explain why the legal system should act. Family law helps answer this question by debunking the widespread belief that relationships are purely a private matter. Family law establishes the strong state interest in nurturing positive relationships and addressing harm in abusive and neglectful relationships. These state interests apply not only to human relationships but also to human-AI relationships.
Family law also helps answer the question of how to regulate AI companionship. Family law recognizes, for example, that legal intervention is often necessary to shift the power imbalance that facilitates harmful relationships — a lesson that should be applied to the power imbalance between technology companies and people using AI companions. And family law teaches that expertise and licensing are necessary for mental health experts to work with a person at any age, although AI companions marketed for therapeutic purposes have not been subject to similar gatekeeping. Finally, family law holds lessons for advocacy, showing that it is possible to advance reasonable regulation notwithstanding the polarized political climate and considerable antipathy to regulating the technology industry, at least at the federal level. Family law points, for example, towards state-level interventions rather than action by Congress or federal agencies, and it demonstrates the broader acceptance of regulations targeted at minors than at adults.
In short, AI companionship is a new kind of relationship, bringing profound and unrecognized change to the landscape of our intimate lives. Legal scholars and policymakers must start grappling with this new world now. Family law holds great promise to accelerate that reckoning
Emergency Lending by the Federal Reserve
No full textThe Federal Reserve established an array of innovative emergency lending facilities during the Great Financial Crisis and expanded the scope of its emergency lending yet further in response to the Covid-19 pandemic. This Article provides a retrospective of how the Federal Reserve used its emergency lending authority across these two episodes, identifying patterns and revealing some differences. It sheds light on the conditions that enabled the Federal Reserve to establish the facilities that it did, including the roles played by Congress and Treasury in providing the equity funding that made certain facilities possible. It shows how in each episode, the Federal Reserve supported a whole-of-government response meant to limit the damage inflicted by a massive shock to the economy while still maintaining its independence with respect to monetary policy