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New York Environmental Legislation in 2018
Get PDFIn 2018, New York State enacted a Drug Take Back Act in response to environmental and public health concerns about improper disposal of unused drugs. Another enactment gave the Department of Health (DOH) greater discretion in enforcement actions against landlords that do not take adequate action to abate lead paint. Other new laws tinkered with legislation enacted in 2017 to protect drinking water and to promote clean energy and energy storage. In addition, Governor Andrew M. Cuomo signed laws concerning farmland and pollinator protection. In New York City, a Styrofoam ban went into effect on Jan. 1 after courts rejected a challenge to city determinations underlying the prohibition
Free-Movement Agreements & Climate-Induced Migration: A Caribbean Case Study
Get PDFClimate-induced migration has become a global challenge. Climate change intensifies the frequency and severity of disasters, thereby increasing the number of people displaced by extreme weather events. Adverse climate impacts are already exacerbating patterns of human mobility, and will do so to a greater degree in the future. The Internal Displacement Monitoring Center (IDMC) reports that approximately 265 million people have been displaced by natural hazards since 2008. Over 17 million people were internally displaced by disasters in 2018 alone. While the majority of climate migrants are displaced within their home countries, many people are forced to move abroad.
The Caribbean region is particularly at risk in relation to climate-induced migration. The ten countries and territories worldwide with the highest average annual internal displacement per capita are all small island developing states (SIDS), the top six of which are located in the Caribbean. Although SIDS experience lower absolute displacement risk compared with more populous countries like India and China, SIDS experience significant displacement relative to their population size. For example, IDMC reported before Hurricane Dorian (2019) that 5.9% of Bahamas’ population will be annually displaced by hurricanes. Hurricane Dorian destroyed nearly half the homes on Great Abaco and Grand Bahamas islands. The 2017 Atlantic Hurricane Season also demonstrates the extent of displacement risk in the Caribbean; three major hurricanes of the season – Harvey, Irma, and Maria – displaced approximately 3 million people in a single month
Broken Experimentation, Sham Evidence-Based Policy
Get PDFEvidence-based policy is gaining attention, and legislation and agency regulation have been no exception to calls for greater uptake of research evidence. Indeed, current interest in “moneyball for government” is part of a long history of efforts to promote research-based decisions in government, from the U.S. Census to cost-benefit analysis. But although evidence-based policy-making (EBPM) is often both feasible and desirable, there are reasons to be skeptical of the capacity of EBPM in governmental decision-making. EBPM is itself bounded by limits on rationality, the capacity of science, the objectivity of science, and the authority we wish to give technocrats. Where values are highly contentious, efforts to produce and use evidence in legislative and regulatory decisions may go so far awry that they become “sham” versions of evidence-based choices. In this Article, I name several of these sham practices, including the distortion of evidence, the engagement in “terminal” experimentation that destabilizes governmental programs, and “ratcheting” actions that defund entire priorities rather than individual approaches. Broken experimentation is also common, with evaluations of government programming and policies neglecting or misusing opportunities to provide rigorous evidence. I argue that the stakes of these misuses are high, resulting in losses of welfare and efficiency, erosion of scientific legitimacy, and infringement on the dignity of human subjects. But where genuine engagement with empirical evidence is possible, the game is surely worth the candle. This Article proposes novel ways to promote responsible uses of empirical evidence in both legislation and agency regulation, including evaluation mandates, pre-registration of evaluation protocols and transparency of research reports, ex ante decision commitments, and more attentive uses of judicial review
Using Shifts in Deployment and Operations to Test for Racial Bias in Police Stops
Get PDFIn this paper, we exploit a policy experiment in the New York Police Department (NYPD) to test for bias in police stops. The NYPD launched Operation Impact in 2003 to change the scale of officer deployments. High crime areas were designated as “impact zones” and saturated with recent police academy graduates. These officers were encouraged to stop, question, and frisk (SQF) crime suspects as part of the NYPD’s overall crime-reduction strategy (MacDonald, Fagan, and Geller 2016). We focus on the expansion of impact zones in Brooklyn and Queens in July 2007. We use geographic data on the boundaries of the impact zones and the specific locations of recorded SQF encounters to test for racial bias in the outcomes from police stops. We use a difference-in-difference (D-D) framework that exploits time and place varying sources of variation in police incentives to stop criminal suspects. We combine the D-D identification with a doubly robust estimator to assure that similarly situated stops are compared in areas before and after impact zones were formed. If the police are not discriminating based on race of crime suspects, then changes in stop outcomes in areas affected by the impact-zone program should be proportional across racial groups relative to unaffected areas
Investment Treaties, Investor-State Dispute Settlement and Inequality
Get PDFInternational investment treaties entrench and exacerbate intra-national inequality by: Providing stronger substantive legal rights to a certain class of actors that in turn strengthen the legal force of their economic rights and “expectations”, with potentially negative impacts on the competing rights and interests of other stakeholders; and Providing unequal procedural rights to a certain class of actors, easing their ability, through ISDS, to challenge regulatory measures negatively impacting their economic interests, while other individuals and entities continue to face relatively high legal and practical barriers to using litigation to protect and/or enhance public interest objectives.
This Working Paper, adapted from the book chapter Investment Treaties, Investor-State Dispute Settlement and Inequality: How International Rules and Institutions Can Exacerbate Domestic Disparities (in José Antonio Ocampo, ed., International Rules and Inequality: Implications for Global Economic Governance (Columbia University Press), 2019-01), explores these channels in greater depth. It also calls for further research to explore how international investment governance could be enlisted to combat inequality, instead of embedding and inflaming it
The Business and Human Rights Arbitration Rule Project: Falling Short of its Access to Justice Objectives
Get PDFThe Hague Rules on Business and Human Rights Arbitration, initiated by the Business and Human Rights Arbitration Working Group, aims to create an international private judicial dispute resolution avenue available to parties involved in business and human rights issues, thereby helping to address the significant remedy gap faced by victims of business-related abuses.
With the perspective that “international arbitration holds great promise as a method to be used to resolve human rights disputes involving business,” the Drafting Team released, in November 2018, an Elements Paper on Business and Human Rights Arbitration, as well as, in June 2019, Draft Arbitration Rules on Business and Human Rights. Both documents were released for public consultation and comment. A designated Sounding Board, of which CCSI is a member, was also consulted.
With respect to the Elements Paper, CCSI submitted comments to the Drafting Team focusing on the following aspects of the Elements Paper: (1) which parties are necessary and sufficient to ensure effective access to justice of victims, including discussion of the desirable roles for both business and states, (2) the appropriate role for both international human rights law (IHRL) as well as other legal norms, and how IHRL should be interpreted and applied in this context, (3) whether model contract clauses are desirable, (4) the critical importance of choosing the appropriate appointing authority, (5) desirable qualifications of BHR arbitrators, including how they should be selected and how challenges to arbitrators should be handled, (6) how principles of transparency and access to information and effective participation should be treated, (7) the desirability of allowing amicus participation as a matter of right, and (8) principles that should govern allocation of costs, as well as a role for financial assistance for claimants and regulation of third-party funding.
Following the release of the Draft Rules, CCSI published this Briefing Note and a blog, Saving the Business and Human Rights Arbitration Rule project: Put Human Rights Holders at the Heart,each of which build on our comments on the Elements Paper and elaborate certain serious concerns that CCSI has regarding the ability of the Draft Rules to advance access to justice in cases of injustices caused or perpetuated by business activity.
Our comments are based on observed realities regarding both how arbitration has operated in other contexts and how companies have sought generally to avoid liability for human rights harms, as well as the steps that companies would need to take to facilitate arbitration and the enforcement of judgments against them. We suggest, among other things, that pressure devoted to seeing corporates submit to BHR Arbitration also be devoted to stopping them from undermining access to justice in domestic courts. We also note that the Draft Rules suffer from procedural and substantive gaps. As a procedural matter, we urge that, before the Draft Rules are finalized, every single one is reviewed carefully by a specific group that is representative of rights-holders and potential claimants. In terms of substance, multiple points, detailed in the above publications, also give us pause. These include, among others: the lack of anti-retaliation protections; a suggested loser-pays fee-shifting arrangement that ignores the reality of most human rights claimants; vague guidance on early dismissal of claims that could further tilt the process against rights-holder claimants; a proposal that interested third parties may need to bear the costs of their participation, which may effectively skew such participation away from all but corporate third parties; and suggestions on interim measures that could place unfathomable responsibility on human rights victims
Why We Need Police
Get PDFThis chapter discusses the essential role that the police have in deterring and reducing crimes, particularly the most violent and costly ones to society, such as murder. We begin by providing a brief overview of deterrence theory before discussing the empirical evidence on the efficacy of police staffing and various policing strategies on crime reduction. Using a framework developed in Weisburd and Eck (2004), we quickly evaluate the model of standard policing and then mainly focus on evidence behind three current policing practices: hot spots, problem- oriented, and proactive. Finally, we use the empirical evidence of police staffing to provide a basis for a theoretical model on the optimal level of policing. Using the Chalfin and McCrary (2017b) framework, we discuss how one could estimate how much crime could be reduced if additional funds were directed to hire more law enforcement officers, and if crime reduction were the sole policing objective, how many cities are in fact underpoliced. We conclude by postulating whether we could implement additional policing without resulting in unwarranted and excessive social costs for the community as discussed by Manski and Nagin (2017)
Asking the Right Question: The Statutory Right of Appraisal and Efficient Markets
Get PDFIn this article, we make several contributions to the literature on appraisal rights and cases in which courts assign values to a company\u27s shares in the litigation context. First, we applaud the recent trend in Delaware cases to consider the market prices of the stock of the company being valued if that stock trades in an efficient market, and we defend this market-oriented methodology against claims that recent discoveries in behavioral finance indicate that share prices are unreliable due to various cognitive biases. Next, we propose that the framework and methodology for utilizing market prices be clarified. We maintain that courts should look at the market price of the securities of a target company whose shares are being valued, unadjusted for the mews of the merger, rather than at the deal price that was reached by the parties in the transaction.
In our view, unadjusted market price has two distinct advantages over deal price. First, the unadjusted market price automatically subtracts the target firm\u27s share of the synergy gains and agency cost reductions impounded in the deal price. This is appropriate to do because dissenting shareholders in appraisal proceedings are not entitled to these increments of value that are supplied by the bidder and it is difficult to accurately ascertain the proportion of the deal price that is attributable to these increments of value. Second, the unadjusted market price is unaffected by any flaws in the deal process that led to the ultimate merger agreement. Recently, commentators have contended that deal prices in merger transactions should be ignored in appraisal cases where there are flaws in the process that led to the sale. However, flaws in the sales process are not reflected in the unadjusted market price, so such prices are valid indicators of value, regardless of whether there were flaws in the deal process.
Further, no deal process is perfect, and ignoring market prices when a deal process is flawed succumbs to what economists call the Nirvana fallacy, which posits that an analytical approach (such as relying on market prices) should not be ignored or abandoned even if using that approach does not produce perfect results. Rather, an analytical approach should be used if it is better than the available alternatives and provides useful information to a tribunal or policymaker.
Finally, we extend our analysis of market efficiency to a new domain. We point out that market prices can be used even when shares of non-publicly traded target companies are being evaluated to determine whether the acquirer paid a fair price in certain cases by examining the share price performance of the acquirer\u27s shares. In cases where a bidder has paid an unfairly low price for the target\u27s shares due to self-dealing, incompetence, or inattention on the part of the seller, the acquirer\u27s stock should react positively to the announcement of the transaction if the transaction is significant. In the absence of such a positive share price reaction on the part of the acquirer, the price should be deemed presumptively fair. This analysis seems particularly apt in situations where there is a dc line in the value of the bidder\u27s stock upon announcement of an acquisition
Board 3.0: An Introduction
Get PDFThis essay sketches out the case for a new model for public company boards: Board 3.0. The now-dominant public board model is an organizational experiment begun approximately 40 years ago, which replaced a prior organizational form that had fallen short. The current model, the “monitoring board,” is dominated by part-time independent directors who are dependent on company management for information and are otherwise heavily influenced by stock market prices as the measure of managerial performance. We have seen a recurrent pattern of monitoring boards composed of talented people that fail to effectively monitor. Nevertheless, when companies fall short in business acumen or legal obligation, we have also seen a recurrent response: place even greater demands on the very boards whose structural inadequacies gave rise to the monitoring failure, most systematically, the millennium accounting scandals that gave rise to Sarbanes-Oxley and the 2008 financial crisis that gave rise to Dodd-Frank.
The problem we see is the inability of the monitoring board model to keep up with changes in the business of the corporations that board structure was supposed to monitor. It simply does not scale
On Dancy’s Account of Practical Reasoning
Get PDFDancy\u27s main thesis is that the conclusion of practical reasoning is an action, and indeed that makes the reasoning practical. I trace his argument, suggest improvements to its superficial deficiencies, and conclude that it fails because Dancy misunderstands the nature of reasoning