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Annual Review of SEQRA Cases and Developments
Full text linkThe New York State Environmental Quality Review Act (SEQRA) turns 50 this year. The statute has changed only a little in the last half century, but it continues to be a font of litigation. The courts decided 43 cases under SEQRA in 2024.
Implementation of SEQRA is also raising policy issues. The legislature is considering whether to amend SEQRA to speed up affordable housing projects, and the State Department of Environmental Conservation (DEC) is drafting regulations concerning the role SEQRA should play in advancing environmental justice.
A constant theme is the tension between thoroughly studying important project impacts and involving affected communities, on the one hand, and moving forward with essential construction on the other hand.
The central requirement of SEQRA is the preparation of an environmental impact statement (EIS) for discretionary state or local actions that may have a significant effect on the environment
Deepfakes Can Ruin Lives and Livelihoods – Would Owning the ‘Rights’ to Our Own Faces and Voices Help?
Full text linkNot that long ago, the term “deepfake” wasn’t in most people’s vocabularies. Now, it is not only commonplace, but is also the focus of intense legal scrutiny around the world.
Known in legal documents as “digital replicas”, deepfakes are created by artificial intelligence (AI) to simulate the visual and vocal appearance of real people, living or dead.
Unregulated, they can do a lot of damage, including financial fraud (already a problem in New Zealand), political disinformation, fake news, and the creation and dissemination of AI-generated pornography and child sexual abuse material.
For professional performers and entertainers, the proliferation and increasing sophistication of deepfake technology could demolish their ability to control and derive income from their images and voices.
And deepfakes might soon take away jobs: why employ a professional actor when a digital replica will do
The Origins of The Rule of Law
Full text linkThis Article offers a novel account of the origins of “the rule of law” in the English-speaking world. The phrase itself likely entered the language as a literal translation of the Latin regula juris. Prior to the early seventeenth century, however, the phrase appears to have been used exclusively to refer to the specific legal rule or maxim most relevant to the resolution of a particular kind of dispute. The more general and abstract use of the phrase – to refer to an ideal of political morality or an ideal type of governance – first appeared in the public record around 1610. It did so in the context of English common lawyers’ criticism of royal economic regulation limiting commodity production and circulation. The ideal type of governance that these common lawyers had in mind was the rule of common-law rules. They believed that the “chief subject or object” of these rules was the freedom of Englishmen to dispose of their possessions and professional skills as they wished, and to profit thereby. The earliest advocates of “the rule of law” thus found themselves in the vanguard of a cross-class project that sought to privilege the equal liberty of commodity exchangers over other long-recognized political, religious, and economic entitlements. Consequently, the original rule of law – the rule of common-law rules – came with a set of libertarian and egalitarian expectations, in addition to expectations of publicity, clarity, regularity, and so on.
This Article argues that the answer lies in the limited yet significant socio-economic context shared by early modern common lawyers, late nineteenth century jurists, and contemporary legal theorists. That shared context is the dominance of commodity exchange, which has characterized capitalist societies since their emergence in sixteenth and seventeenth century Europe. The common lawyers who first used the phrase “the rule of law” to denote an ideal of political morality were responding to a profound and lasting social and economic transformation. That transformation – the penetration of commodity exchange into ever more domains of social life – gave rise to demands for the rule of law four hundred years ago, and continues to shape discourse about the rule of law today
The 2023 Merger Guidelines: An Assessment
Full text linkThe 2023 Merger Guidelines1 are ten months old, but they still need some unpacking. To help our readers think through the issues that the Guidelines raise, Antitrust magazine asked two experienced legal scholars — Professors Tim Wu and Herbert Hovenkamp — to discuss the Guidelines with Antitrust editorial board member James Keyte. This discussion took place on May 28, 2024. The transcript has been edited for length and readability
Taxing the Ten Percent
Full text linkThe United States government is rapidly approaching the point when it will have no choice but to raise taxes. But whose taxes should go up, and why? The argument for higher taxes on the top one percent is well known. The case for higher taxes on the next nine percent is not. This Article makes that case.
Americans with incomes in the top ten percent but not the top one percent are not rich, but they are not middle class either—they are affluent. These affluent Americans have seen mostly tax cuts over the past three decades. Yet today, as progressive politicians and academics advance dramatic proposals for taxing the rich, higher taxes on the affluent remain beyond the pale. This is a mistake. The economic fortunes and the tax-paying capacity of the affluent have been on a steady, if unrecognized, ascent. Moreover, the affluent have entrenched their economic advantage more successfully than any other group, the top one percent included. Because this economic advantage is backed by a dominant cultural narrative and strong political muscle, the economic position of the affluent in American society is enviably secure. As the country’s fiscal situation grows increasingly dire and the gap between the well-off and the rest grows increasingly wide, it is beyond unwise to continue giving the affluent a tax pass. The top one percent should pay more in taxes; the next nine percent should as well. With proper structuring, this tax increase may be implemented by enacting a carbon tax, a value added tax, a national income tax, by reforming the payroll tax or tax expenditures, or by adjusting the rate structure
The Power to Destroy: How the Antitax Movement Hijacked America
No full textThe postwar United States enjoyed large, widely distributed economic rewards — and most Americans accepted that taxes were a reasonable price to pay for living in a society of shared prosperity. Then in 1978 California enacted Proposition 13, a property tax cap that Ronald Reagan hailed as a “second American Revolution,” setting off an antitax, antigovernment wave that has transformed American politics and economic policy. In The Power to Destroy, Michael Graetz tells the story of the antitax movement and how it holds America hostage — undermining the nation’s ability to meet basic needs and fix critical problems.
In 1819, Chief Justice John Marshall declared that the power to tax entails “the power to destroy.” But The Power to Destroy argues that tax opponents now wield this destructive power. Attacking the IRS, protecting tax loopholes, and pushing tax cuts from Reagan to Donald Trump, the antitax movement is threatening the nation’s social safety net, increasing inequality, ballooning the national debt, and sapping America’s financial strength. The book chronicles how the movement originated as a fringe enterprise promoted by zealous outsiders using false economic claims and thinly veiled racist rhetoric, and how — abetted by conservative media and Grover Norquist’s “taxpayer protection pledge” — it evolved into a mainstream political force.
The important story of how the antitax movement came to dominate and distort politics, and how it impedes rational budgeting, equality, and opportunities, The Power to Destroy is essential reading for understanding American life today.https://scholarship.law.columbia.edu/books/1398/thumbnail.jp
Constitutional Clash: Labor, Capital, and Democracy
Full text linkIn the last few years, workers have engaged in organizing and strike activity at levels not seen in decades; state and local legislators have enacted innovative workplace and social welfare legislation; and the National Labor Relations Board has advanced ambitious new interpretations of its governing statute. Viewed collectively, these efforts — “labor’s” efforts for short — seek not only to redefine the contours of labor law. They also present an incipient challenge to our constitutional order. If realized, labor’s vision would extend democratic values, including freedom of speech and association, into the putatively private domain of the workplace. It would also support the Constitution’s promise of free labor; guarantee social and economic rights to workers; expand who qualifies as an equal member of the demos; and forge a more democratic governance structure, with less power for the judiciary and more democratic control over the political economy. The potential threat has not escaped the notice of capital. Business is responding with reinvigorated arguments about the First Amendment, the Takings Clause, due process, equal protection, nondelegation, and the Dormant Commerce Clause, as well as appeals to common law concepts of managerial control and property rights.
By examining labor’s efforts and business’s response, this Article shows that contemporary fights about labor are also inherently fights about constitutional law — about the rights to which citizens and residents are entitled, about governmental powers and structure, and ultimately about how we constitute ourselves as a nation. The Article also offers lessons for how to engage in nonjuriscentric constitutionalism; highlights the importance of advancing an affirmative constitutional agenda; and, from the range of labor’s efforts, outlines a coherent substantive alternative to both business’s constitution and the post-New Deal constitutional compromise that has, in many ways, failed to guarantee a democratic and egalitarian political economy
Orders Without Law
Full text linkThis Review has two goals. The book, by design, largely steers clear of concrete reform proposals; its object is to trace the ways that the Court’s practices around emergency applications shifted over the Trump years and to urge that these developments warrant critical attention (pp. 24–25). My first goal, then, is to propose some reforms. These proposals orbit around a central contention: Any critique of the shadow docket and any proposed solution must depend, explicitly or implicitly, on a theory of the Court — its role in the constitutional order and how it can best serve that role. As a descriptive matter, the Court’s present role was articulated by Taft and realized by the Judges’ Bill; it sits primarily to declare broadly important legal norms. The emergency docket should be understood as an adjunct to that primary function, not as an alternative route to fulfill it.
My second goal is to suggest that, in some respects, Vladeck’s critique of the shadow docket does not go far enough. One of the challenges in assessing the “shadow docket” is that it is not a single thing, but an amalgam of varied practices not susceptible to a uniform prescription. Vladeck’s focus is the emergency docket, and his claim, at bottom, is that the merits docket — with its signed opinions, reasoned orders, oral argument, and so on — is the paradigm of regularity to which the Court’s emergency docket should aspire. At times, though, Vladeck gestures toward a more radical thesis: Since the Judges’ Bill, it is the shadow docket — in particular, certiorari — that has really defined the Court’s institutional identity, not the merits docket (p. 276). Everything the Court does on the merits docket happens only because of a prior shadow docket decision. And when it makes those shadow decisions, the Court has virtually unbounded discretion. The merits docket, in other words, is a small, manicured island on a vast sea of discretion. I close by suggesting that public law theory often fails to confront this stubborn institutional fact. If that is right, the debate about the shadow docket will and should long outlive the present controversy over standards for emergency relief
From the Bench
Full text linkLightly edited transcript of panel comments at the 2023 Symposium, “Rearrange, Transform, or Adapt: The Derivative Works Right After Andy Warhol Foundation v. Goldsmith.
Legal Considerations for Atmospheric Methane Removal
Full text linkScientists are beginning to investigate atmospheric methane removal approaches, which would accelerate the conversion of methane to a less radiatively potent form or physically remove methane from the atmosphere and store it elsewhere. Developing and, if appropriate, deploying atmospheric methane removal approaches will require an understanding of relevant legal considerations and governing structures that could impact whether, when, where, and how specific projects take place. This paper examines the treatment of atmospheric methane removal approaches under international and U.S. domestic law. The paper focuses on five atmospheric methane removal approaches that are currently being investigated: (1) atmospheric oxidation enhancement, (2) ecosystem uptake enhancement, (3) surface treatments, (4) methane reactors, and (5) methane concentrators. Scientists often divide the five approaches into two broad categories based on whether they involve “open” systems (i.e., approaches 1 to 3 above) or “closed” ones (i.e., approaches 4 and 5). This paper adopts that categorization but also distinguishes between approaches based on other factors that are legally significant. The paper does not discuss techniques for reducing methane emissions (e.g., flaring or other techniques that address high-concentration streams) and does not cover hydrogen emissions, even though they can affect atmospheric methane levels. Instead, this paper focuses on the removal of methane from the atmosphere and related legal issues under international law and domestic U.S. law, with a particular focus on U.S. federal law.
There is no specific legal framework governing atmospheric methane removal activities either at the international level or domestically in the United States. However, a variety of general environmental and other U.S. and international laws may apply to field research and deployment. The applicability of different laws will depend on a range of factors, including the specific nature of the activities (e.g., whether they involve open or closed systems), the purpose for which they are conducted (e.g., whether they involve research or commercial activities), where they take place (e.g., on land or in the ocean), and the nature and location of their impacts