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Ideology and Institutions in the Evolution of Capital
Get PDFIn Capital and Ideology, Thomas Piketty poses the intriguing thesis that ideology, or ideas about how society should be governed, is a powerful determinant for how society will be governed-as long as we take advantage of historical switch points. In this review essay I challenge this thesis by pointing out that many powerful ideas have run aground because of countervailing institutional arrangements. Oftentimes, they are leftovers from earlier times that precede the change and are now strategically employed for reconstituting private wealth. Clearly, ideology and institutions are deeply intertwined. I credit Piketty for putting ideology on the map of institutionalists in history, political sciences, sociology, and law. I therefore call for more research on the interaction of ideas and institutions
The Social Science Approach to International Law
Get PDFFor over a hundred years, scholars have argued that international law should be studied using a “scientific” approach. Throughout the twentieth century, however, the most prominent methods used to study international law primarily consisted of different theoretical and analytical claims about how international law should be developed, interpreted, and critiqued. It is only in the first two decades of the twenty-first century that the conventional social science approach to research — identifying a specific question, developing hypotheses, using a research design to test those hypotheses based on some form of qualitative or quantitative data, and presenting conclusions, all while acknowledging the assumptions upon which these conclusions are based and the level of uncertainty associated with the results — became widely used by scholars of international law. International law research using the social science approach has been notably more normatively restrained, empirically informed, and skeptical than past international law scholarship. This Essay describes the rise of the social science approach and advocates for its continued adoption
Defending the Planet Ep6: Environmental Justice
Get PDFLow-income communities and communities of color are more likely to live near contaminated land and to have greater exposure to air and water pollution that are harmful to health. Questions about equity and fairness have taken on new levels of complexity as we confront global climate change. It\u27s clear that major action is needed to address environmental injustices and ensure that marginalized communities have input on governmental policies and decisions. What legal tools and strategies can be used to effectively advance environmental justice?
Olatunde C.A. Johnson, Jerome B. Sherman Professor of Law, and environmental and community lawyer Ruth Santiago \u2783 J.D., \u2710 LL.M. join host Michael B. Gerrard to discuss policies and legal strategies to create a healthier and safer world for all people.https://scholarship.law.columbia.edu/defending_the_planet/1006/thumbnail.jp
Comparison Between the IPCC Reporting Framework and Country Practice
Get PDFTo further and fully understand how to plan for the decarbonization of mining value chains, we need better data on carbon and other greenhouse gas (GHG) emissions. However, neither consumers, corporates, or financial institutions know the embodied emissions in the products they produce or sell. While methods like life-cycle analysis and environmental product declarations exist, none use a verifiable, comparable, or widely adopted emissions reporting framework capable of sending supply chain signals.
To truly reform material supply chains, new solutions for markets, capital, and policy are required. COMET (the Coalition on Materials Emissions Transparency) – an alliance launched at Davos in January 2020 by CCSI, RockyMountain Institute, MIT’s Sustainable Supply Chains initiative, and the Colorado School of Mines – is creating a harmonized GHG calculation framework applicable to all mineral and industrial supply chains. To learn more about COMET, read: The three two-pagers on how COMET is working with financiers, producers, and buyers to create a harmonized GHG calculation framework. The blog How Much CO2 is Embedded in a Product? Toward an Emissions Calculation Framework for the Minerals Industry. The two-page policy brief The COMET Framework: Greenhouse Gas Data Transparency to Enable the Success of EU Climate Policy. The report, Comparison Between the IPCC Reporting Framework and Country Practice. This study examines national GHG inventories prepared by Australia, China, Germany, Japan, and the United States, and highlights how the inventories of different countries – though following the Intergovernmental Panel on Climate Change (IPCC) Guidelines for National Greenhouse Gas Inventories – reflect different choices of GHG accounting methodologies and approaches, emission factors, and categories and gases reported. These choices, allowed under the IPCC Guidelines, result in significant differences in reported GHG emissions, reinforcing the case for adopting a harmonized GHG accounting framework.
In June 2021, the Secretariat of the United Nations Framework Convention on Climate Change (UN Climate Change) partnered with COMET to support the development of a harmonized GHG accounting framework
Professor Justice Ginsburg: Justice Ginsburg\u27s Love of Procedure and Jurisdiction
Get PDFAs two of Justice Ginsburg’s former clerks, we are keenly aware of the popular image of the Justice as the “Notorious RBG”: the champion of women’s rights and the forceful dissenter, strongly disputing the Roberts Court’s conservative turn and articulating the case for the liberal New Deal constitutional vision, with its commitment to protecting individual rights and broad view of national power.
This she did, powerfully and eloquently. But to understand Justice Ginsburg – the person, the Justice, and her jurisprudence – it is also critical to account for her role as the Supreme Court’s leading civil procedure and federal jurisdiction maven
Ending At-Will Employment: A Guide for Just Cause Reform
Get PDFIn the United States, the vast majority of private-sector employers have free rein to discipline or fire workers for good reasons (for harassing other workers), bad reasons (a personal dislike of the worker or a worker’s off-duty activities), or even no reason at all so long as the employers’ justification is not otherwise barred by law. And even if a worker suspects they have been fired for an illegal reason – for instance, because of their race, ethnicity, or gender – the burden is on the worker, not the employer, to collect the necessary evidence, prove discriminatory intent, and mount a legal challenge.
This sweeping legal principle, called employment “at-will,” is the foundation of American employment relations for nonunion private-sector businesses in every state except for Montana.1 It is also unusual: In no other rich democracy do private-sector businesses have as much latitude to dismiss workers without justification as in the US (see box). Other countries require employers to spell out clear justifications for terminating a worker, limit firings to those that meet “just cause” standards, or most often, both (ILO n.d.).
American exceptionalism in at-will employment has pernicious consequences for workers and US workplaces. As we explain in this brief, at-will employment corrodes enforcement of workers’ labor, employment, and civil rights (e.g., Blades 1967; McGinley 1996). At-will employment also leaves workers vulnerable to arbitrary and unfair treatment by managers and supervisors. Workers already likely to experience discrimination or illegal treatment from their employer – for example, Black and brown workers, workers with lower levels of formal education, and low-wage workers – are especially vulnerable under at-will employment. On a more fundamental level, at-will employment erodes workers’ dignity and diminishes the possibility of real workplace democracy
Removing Carbon Dioxide Through Seaweed Cultivation: Legal Challenges and Opportunities
Get PDFScientists increasingly agree that carbon dioxide removal will be needed, alongside deep emissions cuts, to stave off the worst impacts of climate change. A wide variety of technologies and strategies have been proposed to remove carbon dioxide from the atmosphere. To date, most research has focused on terrestrial-based approaches, but they often have large land requirements, and may present other risks and challenges. As such, there is growing interest in using the oceans, which have already absorbed more than a quarter of anthropogenic carbon dioxide emissions, and could become an even larger carbon sink in the future.
This paper explores the ocean-based carbon dioxide removal strategy of seaweed cultivation. Seaweed cultivation involves the growing of kelp and other macroalgae to store carbon in biomass, which can then either be used to replace more greenhouse gas-intensive products or sequestered by sinking the seaweed. Seaweed is typically grown in coastal waters near shore, but research is investigating the possibility of cultivation further offshore, including on the high seas, and sequestration in the deep sea.
This paper examines the international and U.S. legal frameworks that apply to seaweed cultivation. Subsequent work will examine the relevant laws of selected other coastal countries
Climate Attribution Science and The Endangered Species Act
Get PDFClimate change poses an enormous risk to plant and animal species across the planet. Mean global temperatures have already increased by approximately 1ºC, causing environmental changes that affect species abundance, distribution, behavior, physiology, genetics, and survival prospects. These changes, combined with other human stressors, have already resulted in the extinction of some species and imperiled many others. Some scientists describe this as the “Holocene” or “Anthropocene” mass extinction event. The fate of many vulnerable species will depend on emissions trajectories and mitigation efforts. But there is also a compelling need for adaptive species management in the context of a changing climate.
In the U.S., the Endangered Species Act (ESA) is the primary legal vehicle for the protection and management of species at risk of extinction. The statute and accompanying regulations outline a science-based framework for identifying endangered and threatened species, establishing critical habitat boundaries, and mitigating the harmful impacts of public and private-sector activities on listed species. Although climate change is not explicitly mentioned in the statute, there is no question that agencies must consider climate-related threats when implementing the ESA.
This article examines how climate science, particularly climate change detection and attribution research, can be used to improve ESA listing and management decisions. The article begins by focusing on how attribution research – which links existing, observed impacts to climate change – has been used in the courtroom to compel or defend consideration of climate change impacts in agency rulemaking and planning under the ESA. One key finding is that attribution research can help to persuade courts of the credibility of future predictions of climate change, which are particularly relevant when assessing long-term threats to species. Attribution science also supports proactive measures undertaken to protect species against climate-related threats, such as the designation of critical habitat in areas that are presently unoccupied by the species but nonetheless valuable as future refugia or habitat corridors. Agencies cannot ignore attribution research on the basis of uncertainty or imprecision where the data suggests that there is a probable threat to a species.
The article concludes with recommendations and best practices pertaining to the use of climate attribution data in ESA management and litigation. It outlines areas where additional guidance may help agencies improve and standardize their approach to climate impact analysis, as well as regulatory amendments that could improve the consideration of climate science in ESA decision-making and enable agencies to make better management decisions in light of their scientific analysis
The Law and Science of Climate Change Attribution
Get PDFThere is overwhelming scientific agreement that human activities are changing the global climate system and that these changes are already affecting human and natural systems. Significant advances in climate change detection and attribution science – the branch of science that seeks to isolate the effect of human influence on the climate and related earth systems – have continued to clarify the extent to which anthropogenic climate change causes both slow onset changes and extreme events. The spike in deaths and costs associated with extreme events and the prospect for slow onset changes with irreversible impacts has inspired a marked increase in the number of lawsuits seeking to hold different actors – particularly governments and fossil fuel companies – accountable for their contribution to or failure to take action on climate change.
Attribution science is central to recent climate litigation, as it informs discussions of responsibility for climate change. Climate science also plays a central role in policymaking and planning, particularly where decisions need to be made about how to allocate the costs of mitigating and adapting to climate change. This Article describes the role that attribution science has played in recent litigation as well as policymaking and planning activities, and discusses future directions in the law and science of climate change attribution, addressing questions such as how attribution science can better support policymaking and help resolve questions of liability and responsibility for climate change
Global Southerners in the North
Get PDFThird World Approaches to International Law (TWAIL) scholarship contends that international law privileges nation-states in the Global North over those in the Global South. The literature primarily draws on a Westphalian conception of the North-South divide in analyzing asymmetrical issues of power in the global political economy. Given the expansion of global capitalism, however, the nation-state-based mode of analysis misses the fact that there are Global Souths in the geographic North and Global Norths in the geographic South. This Essay makes two theoretical claims.
First, it argues that racial capitalism renders expendable populations across the geographic North and South, destabilizing the Westphalian North-South structure. Global Southerners, defined by their positionality as capitalism’s externalities, exist across the North-South schema. The Essay uses climate displacement as an example. The adverse effects of carbon pollution combine with postcolonial legacy and contemporary imperialism to transmogrify the lives, livelihoods, and homelands of Black, Indigenous, and People of Color (BIPOC) around the world into the hidden cost of industrialization. Climate change, an issue that challenges strict notions of national borders, serves as germane material in the Essay’s work to deterritorialize the notion of the North-South divide.
Second, this Essay names the existence of Global Southerners in the geographic North as a heretofore unnamed site of resistance for reordering the North-South divide in international law. It leverages the author’s deterritorialized view of the Global South to claim that Global Southerners are political agents with the capacity to shift the global political economy of international law. Although others have begun to reimagine the Global South beyond geographical lines in order to articulate a theory of resistance in international law, this Essay seeks to break new ground by highlighting the particular power of Global Southerners residing in the geographic North. As such, this Essay reinvigorates the central TWAIL question of how to shift power along the North-South divide