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New Climate Law Will Reshape NY’s Key Sectors
Get PDFDeep changes in the way electricity is generated, people and goods move around, and buildings are erected and renovated in New York will be required by the Climate Leadership and Community Protection Act (CLCPA), which both houses of the state Legislature have passed and Governor Andrew Cuomo has promised to sign
The Global Dominance of European Competition Law Over American Antitrust Law
Get PDFThe world’s biggest consumer markets – the European Union and the United States – have adopted different approaches to regulating competition. This has not only put the EU and US at odds in high-profile investigations of anticompetitive conduct, but also made them race to spread their regulatory models. Using a novel dataset of competition statutes, we investigate this race to influence the world’s regulatory landscape and find that the EU’s competition laws have been more widely emulated than the US’s competition laws. We then argue that both “push” and “pull” factors explain the appeal of the EU’s competition regime: the EU actively promotes its model through preferential trade agreements and has an administrative template that is easy to emulate. As EU and US regulators offer competing regulatory models in domains as diverse as privacy, finance, and environmental protection, our study sheds light on how global regulatory races are fought and won
The Code of Capital: How the Law Creates Wealth and Inequality
No full textCapital is the defining feature of modern economies, yet most people have no idea where it actually comes from. What is it, exactly, that transforms mere wealth into an asset that automatically creates more wealth? The Code of Capital explains how capital is created behind closed doors in the offices of private attorneys, and why this little-known fact is one of the biggest reasons for the widening wealth gap between the holders of capital and everybody else.
In this revealing book, Katharina Pistor argues that the law selectively “codes” certain assets, endowing them with the capacity to protect and produce private wealth. With the right legal coding, any object, claim, or idea can be turned into capital – and lawyers are the keepers of the code. Pistor describes how they pick and choose among different legal systems and legal devices for the ones that best serve their clients’ needs, and how techniques that were first perfected centuries ago to code landholdings as capital are being used today to code stocks, bonds, ideas, and even expectations – assets that exist only in law.
A powerful new way of thinking about one of the most pernicious problems of our time, The Code of Capital explores the different ways that debt, complex financial products, and other assets are coded to give financial advantage to their holders. This provocative book paints a troubling portrait of the pervasive global nature of the code, the people who shape it, and the governments that enforce it.https://scholarship.law.columbia.edu/books/1014/thumbnail.jp
Overcoming Impediments to Offshore CO2 Storage: Legal Issues in the U.S. and Canada
Get PDFLimiting future temperature increases and associated climate change requires immediate action to prevent additional carbon dioxide being released into the atmosphere and to lower the existing atmospheric carbon dioxide load. This could be advanced through carbon capture and storage (CCS), which involves collecting carbon dioxide that would otherwise be released by power plants or similar facilities and injecting it into underground geologic formations, where it will remain permanently sequestered. The techniques developed for CCS can also be used to sequester carbon dioxide that has been removed from the atmosphere using direct air capture or other negative emission technologies. Past CCS research has primarily focused on sequestering carbon dioxide onshore, for example, in depleted oil and gas reservoirs or deep saline aquifers. This Article explores the legal framework governing sub-seabed carbon dioxide injection (offshore CCS) in U.S. and Canadian waters, particularly the Cascadia Basin, where there is a large sub-seabed basalt rock formation with significant storage potential
Domesticating Guidance
Get PDFThis Essay, written for an occasion celebrating the scholarship of Professor William Funk of Lewis & Clark Law School, builds in good part on his analyses of soft law documents — statements of general policy and interpretive rules — that today one generally finds discussed under the rubric “guidance.” These are agency texts of less formality than hard law regulations adopted under the procedures of 5 U.S.C. § 553, that inform the public how an agency intends to administer its responsibilities, as a matter of policy or (what may seem just one instance of that) via the interpretation of its governing statutes or regulations. The APA is explicit that in adopting these texts, agencies are not required to use the notice and comment process ordinarily required for the adoption of regulations having the force of law; but it also signals that, like agency caselaw precedent, guidance may be relied upon to a private party’s disadvantage if it has been published or come to its actual notice. Guidance documents, revealing agency policy and perhaps showing the way to safe compliance, can structure the behavior of agency staff and be highly influential for the regulated; but they are not in themselves enforceable against actors in the outside world — hence, soft law. Typically, they are the product of agency staff, and do not (as regulations do) require the imprimatur of the agency’s political leadership for their adoption.
Documents like these are common worldwide in regulatory contexts, much more numerous than regulations (as regulations are more numerous than statutes). In American administrative law they have often been caught up in disputes whether the notice and comment procedures engaging the agency’s political leadership needed to have been used for their adoption. Judicial concerns are that ostensible soft law has often been used to evade the increasingly demanding obligations associated with notice and comment rulemaking. A common test has been whether, although nominally soft law, they are “practically binding.” The basic arguments of this Essay are, first, that this approach fails to differentiate highly desirable internal agency law (that is, policies “binding” on some agency staff) from what impermissibly “binds” the public; and, second, that soft law instruments can often be found “final” for purposes of judicial review — if they are, in effect, the agency’s internal law — and that use of the equitable standards for declaratory judgment long ago endorsed for pre-enforcement review of rulemaking will then permit dealing with the legality of soft law on its merits, and not as a matter of procedural compliance. Questions about “Auer deference” that the Supreme Court addressed in Kisor v. Wilkie twelve weeks after the celebration of Professor Funk are also briefly addressed
Legal Frameworks & Foreign Investment: A Primer on Governments’ Obligations
Get PDFLegal frameworks, and how they interact, are often invisible in the day to day. Yet they are powerful forces that influence government actions and that help to shape who benefits and who loses from foreign investment. Understanding these legal frameworks, and how they interact, is critical for anyone concerned with how foreign investment can be better harnessed to support, rather than weaken, sustainable development and human rights.
This primer provides a brief overview of host government obligations under international investment law, international human rights law, domestic law, and relevant investor-state contracts. It also highlights some of the ways in which those legal obligations may affect or conflict with each other
Investment Treaties, Investor-State Dispute Settlement, and Inequality: How International Investment Treaties Exacerbate Domestic Disparities
Get PDFOver roughly the past four decades, government officials from around the world have been erecting a framework of economic governance with major – but under-appreciated – implications for intra-national inequality. The components of this framework are thousands of bilateral and multilateral treaties designed to protect international investment. In many jurisdictions, the treaties have been concluded without public awareness or scrutiny or even much discussion or analysis by government officials – including those officials responsible for negotiating the agreements(Poulsen 2015) – and without an adequate understanding of how these agreements could affect intra-national inequality. Long imperceptible, the size and power of this framework for economic governance has increasingly become apparent. And governments continue to expand and entrench the framework through the negotiation of several new bilateral and multilateral agreements, including the Trans-Atlantic Trade and Investment Partnership Agreement between the European Union and the United States, the agreements China is negotiating with the United States and European Union, and the Regional Comprehensive Economic Partnership (RCEP) agreement being negotiated by sixteen countries throughout Asia and the Pacific
Third-Party Rights in Investor-State Dispute Settlement: Options for Reform
Get PDFThe United Nations Commission on International Trade Law (UNCITRAL) is currently working on how to reform international investment treaties, focusing in particular on those treaties’ provisions enabling investors to sue governments in international arbitration. As an observer organization in this process, CCSI has emphasized that in the context of investor-state dispute settlement (ISDS) reform, it is important to first consider what it is that investment treaties aim to achieve, and only then to consider what form(s) of dispute settlement will best advance those objectives. This means not only looking at reform of the existing ISDS mechanism, but also alternatives to it. Having identified various concerns about ISDS, UNCITRAL is now taking stock of potential reform options, and will consider this fall which options to pursue and in what order. To contribute to UNCITRAL’s work, CCSI, together with the International Institute for Environment and Development (IIED) and the International Institute for Sustainable Development (IISD), submitted this document outlining potential reform options and considerations.
Third Party Rights in Investor-State Dispute Settlement: Options for Reform (also available in Spanish) builds on work highlighting the impact of ISDS on access to justice for third parties, and briefly elaborates on how investor-state arbitrations can affect third parties, while also offering examples of procedural tools that states could use to better safeguard those third parties’ rights
The Single-Subject Rule: A State Constitutional Dilemma
Get PDFCritics of the proliferation of omnibus legislation in Congress have pointed to the constitutions of the American states as providing an alternative, and potentially superior, model for lawmaking. Forty-three state constitutions include some sort of “single-subject” rule, that is, the requirement that each act of the legislature be limited to a single subject. Many of these provisions date back to the second quarter of the nineteenth century, and, collectively, they have been the subject of literally thousands of court decisions. Nor is the rule a relic from a bygone era; one recent study found the rule at stake in 102 cases in 2016 alone. Many of these decisions have involved controversial, hot-button issues. In the last two decades, state courts have used single-subject rules to invalidate laws dealing with, inter alia, firearms regulation, abortion, tort reform, immigration, local minimum wage laws, sex offenders, enhanced criminal penalties, and school vouchers.
Yet, despite having long been a part of the constitutional law of most states, the single-subject rule is deeply problematic. Courts and commentators have been unable to come up with a clear and consistent definition of what constitutes a “single subject.” Instead, a persistent theme in the single-subject jurisprudence has been the inevitable “indeterminacy” of “subject” and a recognition that whether a measure consists of one subject or many will frequently be “in the eye of the beholder.” On the one hand, as the Michigan Supreme Court once explained, “[t]here is virtually no statute that could not be subdivided and enacted as several bills.” On the other hand, as an older Pennsylvania Supreme Court case put it, “no two subjects are so wide apart that they may not be brought into a common focus, if the point of view be carried back far enough.
Private Ownership at a Public Crossroads: Studying the Rapidly Evolving World of Corporate Ownership
Get PDFCapital formation in the United States is currently in the midst of a significant transition with largely unexplored consequences for the ownership and control of American business, as well as significant implications for the future of the public equity markets. Although public equity markets remain vast and important, they are no longer the primary source of capital for business formation and growth. Increasingly, capital for business formation and growth is being raised — and held — privately from a relatively new set of institutional investors (most importantly, venture capital and private equity funds). As a result, ownership and control over significant swaths of American business has shifted from participants in public markets to participants in the private markets