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COVID-19 and the Law: Elections
Get PDFWith one Supreme Court decision, lower federal and state court decisions, pending litigation, and proposals around the country for major changes in how elections are conducted, COVID-19 has already had and likely will continue to have a significant impact on election law.
The discussion that follows proceeds in two parts. The first addresses the initial consequences of COVID-19 as an electoral emergency. Voters were due to go to the polls in states around the country just as the pandemic was gathering force and governors and mayors were calling on people to stay at home and avoid large gatherings – which, of course, often occur at crowded polling places during contested elections. Although many states managed to move their late March and April elections to May, June, or later without incident, heated political and legal battles broke out in Ohio and Wisconsin over changing election dates and formats, with the Wisconsin dispute winding up in both the state and United States Supreme Courts the day before the election, and Wisconsin conducting an in-person election in the middle of a pandemic.
The second part looks beyond the immediate effects of COVID-19 to the middle term, that is, to the host of changes to election laws that will be needed for the November 2020 election if, due to the pandemic, large gatherings remain a public health threat. Some form of primarily vote-by-mail system will be needed, but such a system is currently in place only in five states, and those states took several election cycles to make the transition from traditional polling-place voting. Indeed, right now, one-third of the states permit only voters with one of a limited number of excuses specified in the states’ statutes to obtain a mail-in ballot. Widespread changes in voting laws will be necessary if the November elections are to be safe, fair, and secure. Yet, partisan opposition encouraged by President Trump’s error-filled misstatements about voting-by-mail makes it unclear whether these changes will be made
Submission to the US State Department Commission on the Unalienable Rights
Get PDFThis submission emphasizes the centrality of economic and social rights to human rights and highlights how advocating for a hierarchy of rights that downplays their equal status is contrary to widely-recognized international norms, ignores the lived experience of individuals, and will serve to further entrench inequality. The submission urges the Commission to recognize and reaffirm the full panoply of human rights found in the Universal Declaration of Human Rights (UDHR) and subsequent human rights agreements. The discussion highlights the negative implications of a narrowed conceptualization of human rights, emphasizing that a circumscribed vision of human rights will perpetuate a system where true freedom is enjoyed only by a privileged few – those who can afford it
Corporate Control, Dual Class, and the Limits of Judicial Review
Get PDFCompanies with a dual-class structure have increasingly been involved in high-profile battles over the reallocation of control rights. Google, for instance, sought to entrench its founders’ control by recapitalizing from a dual-class into a triple-class structure. The CBS board, in contrast, attempted to dilute its controlling shareholder by distributing a voting stock dividend that would empower minority shareholders to block a merger it perceived to be harmful. These cases raise a fundamental question at the heart of corporate law: What is the proper judicial response to self-dealing claims regarding reallocations of corporate control rights?
This Article shows that the reallocation of control rights raises an inevitable tradeoff between investors’ protection from agency costs and the controller’s ability to pursue its idiosyncratic vision, making the value of different allocations of control rights both firm specific and individual specific. It is thus inherently impossible to create objective valuation models for the reallocation of control rights. The impossibility of creating reliable valuation models sets the limits of judicial review: The legal tools long used by Delaware courts to adjudicate conflicts over cash-flow rights, such as entire fairness review, are fundamentally incompatible with the adjudication of conflicts over reallocations of control rights. This Article explores the policy implications of this insight and suggests that courts treat reallocations of control rights as questions of charter interpretation as to who has the power to decide such reallocations and avoid reviewing the discretion to use that power. Courts should enforce the decision of the parties as to reallocations of control rights and apply the business judgment rule when the charter is silent
Power in Human Rights Advocate and Rightsholder Relationships: Critiques, Reforms, and Challenges
Get PDFHuman rights advocacy can construct passive “victims,” objectify or displace rightsholders and affected communities, and contribute to their disempowerment. In response to critiques – made by rightsholders, activists, and scholars alike – about the values and effects of such disempowering advocacy models, many advocates are increasingly prioritizing an understanding of these dynamics and reforming practice to better center and support the agency of directly affected individuals and groups. However, the tactics and modalities of these efforts are under-examined in scholarly literature, and many human rights advocates lack access to adequate documentation of tactics and spaces for peer learning. In this article, we seek to contribute to improved practice and to deeper understanding of both the potential and limits of advocates’ responses to critiques of how they relate to rightsholders. We examine: first, how common advocacy practices risk rightsholder disempowerment, and second, the many tactics advocates are developing to promote rightsholders at the center of advocacy and as agents of change, and the key challenges faced in seeking to do so. We ground the analysis in concrete practices, drawn from our experiences as advocates and from a workshop and interviews with other scholars and advocates. We organize our analysis into key moments in the advocacy timeline, from when decisions are made about the issues on which to focus, through to investigations, advocacy, and evaluation. We find that while advocates can engage in disempowering practices at each stage, advocates and rightsholders have at their disposal a wide variety of tools and practices to help redefine the terms of their relationships, in ways that can contribute to restructuring power imbalances. We conclude with recommendations which can further reform the human rights field toward increased support for rightsholder agency and power
Building a Law-and-Political-Economy Framework: Beyond the Twentieth-Century Synthesis
Get PDFWe live in a time of interrelated crises. Economic inequality and precarity, and crises of democracy, climate change, and more raise significant challenges for legal scholarship and thought. “Neoliberal” premises undergird many fields of law and have helped authorize policies and practices that reaffirm the inequities of the current era. In particular, market efficiency, neutrality, and formal equality have rendered key kinds of power invisible, and generated a skepticism of democratic politics. The result of these presumptions is what we call the “Twentieth-Century Synthesis”: a pervasive view of law that encases “the market” from claims of justice and conceals it from analyses of power.
This Feature offers a framework for identifying and critiquing the Twentieth-Century Synthesis. This is also a framework for a new “law-and-political-economy approach” to legal scholarship. We hope to help amplify and catalyze scholarship and pedagogy that place themes of power, equality, and democracy at the center of legal scholarship
Future Scenarios: “We are all failed states, now”
Get PDFAs I write this, the constitutional environment of the United States is experiencing its greatest stresses since the American Civil War. A viral pandemic has engulfed the world and especially stricken the United States; as of this writing more than 3 million coronavirus cases have been reported in the United States, more than in any other country. Although the United States has about 4.2% of the global population, it has suffered 25% of the deaths worldwide – more than 132,000 Americans have died from the COVID-19 virus. Partly as a consequence of this viral apocalypse, US unemployment is experiencing levels approaching 20% – numbers not seen since the Great Depression, and US gross domestic product is expected to contract by 7% in a single year. The chairman of the Federal Reserve has predicted a steep recession of uncertain length and the federal debt has climbed to levels unseen outside of wartime.
Coincidentally, a mass interracial movement has been ignited by instances of police brutality toward African Americans, made indelible by smartphone cameras that have seared into the memory of a horrified world the death throes of unarmed persons in police custody. Not so coincidentally, the White House is occupied by a president who has an attitude of inflamed contempt for US constitutional norms and an incompetence at foreign policy that has prompted concern even from America’s adversaries. Respect for the deadlocked Congress and for public officials is approaching historic lows. The public is sharply divided against itself; members of both parties at record levels would not wish to see their children marry outside the faith. The commitment to democracy itself has sharply decreased among its heirs, the generation born in the 21st century. Opinion polls taken abroad confirm that America’s global image has plummeted and the nonproliferation initiatives of the US administration toward North Koreaand Iran have collapsed. In this fraught summer, it has hardly captured the headlines that temperatures in Siberia have soared to levels unseen in a hundred thousand years. To say that the world, and especially its leading power the United States, is facing a series of crises hardly needs to be said
New York’s New Statute on Siting Renewable Energy Facilities
Get PDFAs part of a massive budget bill signed into law by Gov. Andrew Cuomo on April 3, New York has adopted the Accelerated Renewable Energy Growth and Community Benefit Act (AREGCBA). It completely revamps the process under which large-scale renewable energy facilities and associated transmission lines receive state and local approvals
Some Issues on the Law of Direct Damages (US and UK)
Get PDFWhen a contract is breached, both U.S. and U.K. law provide that the non-breaching party should be made whole. The Uniform Commercial Code (“UCC”) provides that “[t]he remedies provided by this Act shall be liberally administered to the end that the aggrieved party may be put in as good a position as if the other party had fully performed.” The English version, going back to Robinson v. Harman, is “that where a party sustains a loss by reason of breach of contract, he is, so far as money can do it, to be placed in the same situation, with respect to damages, as if the contract had been performed.” I propose a general principle that should guide implementation – the contract is an asset and the problem is one of determining the change in value of that asset at the time of the breach.
In the simplest case – i.e., the breach of a contract for the sale of a commodity in a thick market – the change in the value of the asset is simply the contract-market differential; the contract-as-asset notion does not add much. It becomes more useful as we move away from that extreme – e.g., imperfect substitutes, future deliveries, or long-term contracts. Thus, for example, it makes little sense to talk of the contract-market differential if the buyer repudiated a 20-year take-or-pay contract in the third year
Climate Risk in the Electricity Sector: Legal Obligations to Advance Climate Resilience Planning by Electric Utilities
Get PDFElectricity generation, transmission and distribution, and load are all impacted by weather patterns. Electric system assets have been designed for historic weather conditions, with the goal of ensuring reliability and quick recovery following extreme events. However, climate change is causing major shifts in historic weather patterns and more frequent and severe extremes, which are creating new risk profiles for the electric system. Proactive climate resilience planning by electric utilities to identify, respond, and rationally allocate these climate risks is thus increasingly salient. This paper argues that it is also legally required.
Recently published industry studies demonstrate that accurate, specific, and actionable climate resilience planning is possible. Nevertheless, and despite the significant benefits of climate resilience planning, relatively few electric utilities have engaged in the process. This paper explores two legal doctrines, public utility law and tort law, which we argue obligate electric utilities to plan for the impacts of climate change on their assets and operations. Public utility law requires electric utilities to meet, among other things, prudent investment and reliability standards. Tort law establishes a duty of care that obligates electric utilities to, among other things, avoid foreseeable harm when performing acts that could injure others. We argue that, as climate science becomes more precise and predictive, these legal standards take on new meaning and require electric utilities to engage in climate resilience planning
Lockean Copyright versus Lockean Property
Get PDFLocke’s labor theory, the most familiar of property theories, has faced centuries of philosophical criticism. Nonetheless, recent legal scholars have applied it to intellectual property while overlooking these philosophical critiques. Philosophers, on the other hand, are largely absent in IP theorizing, thus not asking whether Locke’s resilient intuition is salvageable in copyright’s domain. This Article argues that Lockean copyright is actually far more plausible than Lockean property, for it avoids the most devastating objections the latter faces. It then defends a surprising doctrinal implication of this theoretical conclusion: a workable Lockean copyright favors rights far more limited than present law