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The Demise of Deference — And the Rise of Delegation to Interpret?
Get PDFIn the concluding days of its recently completed Term, in the midst of headline-grabbing decisions about presidential immunity, gun rights, and abortion, the Supreme Court rendered a momentous decision overruling the Chevron doctrine. The decision in Loper Bright Enterprises v. Raimondo was not a surprise. After treating the Chevron doctrine as a settled principle of administrative law for more than three decades, the Court stopped applying it in 2016. Several Justices authored individual opinions urging that it was unconstitutional, violated the Administrative Procedure Act (APA), was prone to manipulation by judges, created systematic bias in favor of the government, and created “a license authorizing an agency to change positions as much as it likes” thus fostering “unwarranted instability in the law.” In 2022, the Court announced an exception to Chevron, to the effect that major questions of economic and political significance cannot be resolved by agencies absent “clear congressional authorization.” The signals were abundant that the Chevron doctrine had lost the support of the conservative members of the Court, who now make up a strong six-member majority
Removing Methane via Soil Amendments: The Legal Framework
Get PDFRapid and sustained reductions in human-driven methane emissions are critical to limiting warming in line with the 2015 Paris Agreement. Reductions in certain methane emissions, particularly from the fossil fuel sector, can be implemented cheaply and efficiently. Other forms of methane emissions, like those from agricultural sources, are more difficult to control. This fact, coupled with concerns that climate change could unlock significant additional natural emissions from tropical wetlands and melting permafrost, has increased interest in atmospheric methane removal (“AMR”).
AMR refers to human interventions to accelerate the conversion of methane in the atmosphere to a form that causes less warming. Scientists have proposed a range of potential AMR approaches, but all are in the early stages of development and require significantly more research to evaluate their efficacy and impacts. One proposed AMR approach is soil amendments, which refers to the addition of substances to soils to increase methane uptake by microbes in the soil.
This paper explores the international and domestic (U.S.) laws governing methane removal via soil amendments. The paper introduces the concepts of AMR and soil amendments, explains proposed applications of soil amendments, and discusses the climate and non-climate benefits and risks that soil amendments may present. The paper then discusses the international and U.S. legal frameworks that might affect whether, when, where, and how soil amendment projects are conducted
New Approaches and Challenges Regarding Trade, Climate Action, and the WTO
Get PDFThis report considers how the WTO, as an institution and its rules, can and should be a game-changer in undertaking climate action and the green energy transition globally. By leveraging its toolkit, the WTO has the potential to drive climate action, from regulating border carbon adjustments to promoting trade in green products, green electricity, and dissemination of climate technologies. However, unlocking this potential requires legal reforms, a proactive institutional role, and strong political will from WTO members
New York City Relaxing Environmental Review Rules for Housing Construction
Get PDFFaced with a severe housing shortage, New York City is exempting the construction of much new housing from the environmental review processes and taking many other steps to encourage such construction throughout the city. Several of these moves will also help the transition away from fossil fuels to renewable energy
Sabin Center for Climate Change Law Annual Report 2023
Get PDFThis year the Sabin Center for Climate Change introduces its first annual report, which highlights and synthesizes our cutting-edge research and innovative engagements in 2023
War Powers Reform: A Skeptical View
Get PDFDebates about war powers focus too much on legal checks and on the President’s power to start wars. Congressional checks before and during crises work better than many reform-ists suppose, and there are ways to improve Congress’s political checking without substantial legal reform
Bail at the Founding
Get PDFHow did criminal bail work in the Founding era? This question has become pressing as bail, and bail reform, have attracted increasing attention, in part because history is thought to bear on the meaning of bail-related constitutional provisions. To date, however, there has been no thorough account of bail at the Founding. This Article begins to correct the deficit in our collective memory by describing bail law and practice in the Founding era, from approximately 1790 to 1810. In order to give a full account, we surveyed a wide range of materials, including Founding-era statutes, case law, legal treatises, and manuals for magistrates; and original court, jail, administrative, and justice-of-the-peace records held in archives and private collections.
The historical inquiry illuminates three key facts. First, the black-letter law of bail in the Founding era was highly protective of pretrial liberty. A uniquely American framework for bail guaranteed release, in theory, for nearly all accused persons. Second, things were different on the ground. The primary records reveal that, for those who lived on the margins of society, bail practice bore little resemblance to the law on the books, and pretrial detention was routine. The third key point cuts across the law and reality of criminal bail: both in theory and in practice, the bail system was a system of unsecured pledges, not cash deposits. It operated through reputational capital, not financial capital. This fact refutes the claim, frequently advanced by opponents of contemporary bail reform, that cash bail is a timeless American tradition. The contrast between the written ideals and the actual practice of bail in the Founding era, meanwhile, highlights the difficulty of looking to the past for a determinate guide to legal meaning
Roe v. Dobbs: The Past, Present, and Future of a Constitutional Right to Abortion
No full textWith this volume, Roe v. Dobbs: The Past, Present and Future of a Constitutional Right of Abortion, we confront the remarkable beginning and end — once again, after a half-century-of the landmark Supreme Court decision in Roe v. Wade, shockingly overruled by the Court in Dobbs v. Jackson Women\u27s Health Organization. The goal of this book is to bring together some of our nation\u27s leading constitutional scholars, historians, philosophers, and medical experts to share their views on whether there should be a constitutional right to abortion and what the consequences of Dobbs might be.
What makes this subject unique is how it intersects with our own lives, since both Bollinger and Stone were law clerks at the Supreme Court in the year that Roe was decided (1973) — Stone for Justice William Brennan and Bollinger for Chief Justice Warren Burger. During the Court\u27s 1972 Term, when Roe was decided, the Court was in a state of flux. President Nixon had just appointed four Justices to the Court — Burger, Blackmun, Powell, and Rehnquist. The era of the Warren Court was clearly over. In those days, the Justices were non-partisan, often joined opinions across the political/ideological spectrum, and approached cases with an open mind. That in large part explains why the Court could reach the decision it did in Roe, with five of the six Republican-appointed Justices and two of the three Democratic-appointed Justices in the majority, and one Republican-appointed justice (Rehnquist) and one Democratic-appointed justice (White) in dissent. It was a different Court and a different era.https://scholarship.law.columbia.edu/books/1391/thumbnail.jp
Restating the Law in a Child Wellbeing Framework
Get PDFThe Restatement of Children and the Law is scheduled for formal adoption by the American Law Institute in 2024. When this project was first proposed, it was met with some skepticism, on the view that the regulation of children was not a coherent field of law. But after eight years of work on this Restatement, the Reporters have produced a comprehensive account of the law’s treatment of children and clarified that it is, indeed, an integrated and coherent area of law. Our work has uncovered a deep structure and logic that shapes the legal regulation of children in the family, in school, in the justice system, and in the larger society. And it has clarified that the core principle and goal of the law affecting children across these domains is to promote their wellbeing. This Child Wellbeing framework is embodied in the Restatement. It can be discerned most clearly in youth crime regulation, but it also shapes state intervention in families and parental rights, as well as children’s rights in school and in society.
The Child Wellbeing framework bears some similarity to the principles driving the Progressive era reforms, which also elevated the welfare of children—and which ultimately fell short of attaining the reformers’ goals. But the Restatement’s contemporary approach embodies three features that distinguish it from that of the earlier period. First, regulation today increasingly is based on research on child and adolescent development, as well as studies on the effectiveness of policy interventions. This empirical evidence provides a sturdier basis for doctrine and policy than the naive and intuitive approach of Progressive lawmakers, and a growing number of courts and legislatures rely on this research. Second, today’s lawmakers increasingly recognize the broader social welfare benefits of regulation that promotes the wellbeing of children, increasing its political viability. And third, acknowledgement by courts of the ways in which embedded racial and class bias has affected the law’s relationship to children and families has led to tentative steps to ameliorate these pernicious influences.
This Essay elaborates on the Child Wellbeing framework, using various Restatement rules as examples of its implementation. It first focuses on the regulation of children in the justice system as the prime example. It then turns to the regulation of the parent-child relationship, explaining that the Restatement’s strong protection of parental rights is solidly grounded in the Child Wellbeing principle. Finally, the Essay examines children’s rights, clarifying that the Child Wellbeing principle is at work in lawmakers’ decisions to extend or withhold autonomy-based rights, or to maintain or create paternalistic protections
Deconstructing the Blueprint for Infringement: Remedying Flawed Interpretations of the § 120(a) Exception to Architecture Copyrights
Get PDFDrafting the Architectural Works Copyright Protection Act of 1990 (“AWCPA”) consisted of a bizarre hodgepodge of considerations. Ostensibly, the goal of the Act was to bring the United States unquestionably into compliance with the Berne Convention for the Protection of Literary and Artistic Works, which the United States had just recently joined, with as minimal an impact on U.S. law as possible. In reality, this goal — itself not without built-in tensions — was but one of several competing forces at play in the drafting process. The other forces generally fell into three camps. There were the proponents of preserving the interests and expanding the rights of America’s architects in one corner. In the opposite corner, with a seemingly outsized influence, were the proponents of the rights of America’s architectural photographers. Finally, and most abstractly, there were the proponents of preserving the elusive integrity of copyright law itself. As a testament to this elusiveness, the most active debates were fought not between the architects and photographers, but rather among America’s foremost copyright experts whose various normative frameworks led them to competing views on how best to facilitate the progression of the law.
While all views were considered, the final product is unsurprisingly flawed: an amalgamation of poorly assimilated concepts with rampant logical loopholes. The flaws are most evident in § 120, the scope of copyright protection for architecture. Section 120(a) provides an exception, common to nearly all Berne Union members, allowing buildings to be replicated in other artists’ two-dimensional works without violating the copyright of the building’s architect. During the drafting process, while there was debate over the exact wording, there was little debate over whether to include this exception, as it seemed fairly innocuous and important for the endurance of the urban photography industry.
In 2022, the U.S. District Court for the Western District of Texas interpreted this exception to allow a realtor to reproduce and distribute the blueprints of a single-family home for marketing purposes without the consent of its architect. As confounding a conclusion as this may seem to those well-versed in copyright law, it is actually not entirely unfounded in the text. This is due in part to an edit that was made during the drafting of the definition section of the Act to include “architectural plans” in the definition of “architectural works,” thus arguably extending the same exception from the exterior of constructed buildings to their blueprints. As such, in an effort to meet its Berne obligations and provide added copyright protection for America’s architects, Congress may have inadvertently stripped architects of a right that they previously held.
Before the passage of the AWCPA, architectural blueprints were protected as “[p]ictorial, graphic, and sculptural works,” and were therefore protected against unauthorized reproduction in two-dimensional form. That said, these blueprints were not protected against construction of the buildings depicted in them because the buildings themselves were nearly always considered “useful articles,” with few to no conceptually separable elements. This protection for blueprints was clarified and codified in the Berne Convention Implementation Act of 1988, which added “diagrams, models, and technical drawings, including architectural plans” to the definition of “[p]ictorial, graphic, and sculptural works.” Substantively, the result of this amendment — that architectural plans that contained copyrightable elements could not be reproduced and distributed without the consent of the copyright owner — made no difference except to appease those concerned about the lack of explicit statutory language responsive to Berne Convention requirements. The real substantive change came a year later with the AWCPA, which created a new copyright subject matter category: “architectural works.” This category covers both plans and constructed works, thus protecting against the construction of buildings from protected plans.
It is important to note here that the AWCPA was not intended to replace the copyright protection in blueprints as “pictorial, graphic, and sculptural works,” nor was it meant to take precedence over that right. After the AWCPA, architectural blueprints are simultaneously protected both as “architectural works” and as “pictorial, graphic, and sculptural works.” These two forms of copyright protection bring with them different standards and different exceptions, but they are meant to coexist. Protection as a “pictorial, graphic, and sculptural work” is subject to the conceptual separability test. However, those elements that are deemed copyrightable are always protected against unauthorized reproduction. As noted above, the AWCPA includes a pictorial representations exception. In applying the pictorial representations exception to architectural plans, as the U.S. District Court for the Western District of Texas did, however, the protection that copyright holders previously held against reproduction of their plans as “pictorial, graphic, and sculptural works” is lost. Loss of that protection means that there is no statutory means of preventing rampant copying and distributing of architectural blueprints of constructed buildings visible from public places. It also means that protection as “pictorial, graphic, and sculptural works” for architectural plans is rendered toothless.
This is a problem for a few reasons. First, for the most successful architects, there exists a market in their blueprints and architectural drawings as art forms themselves. A quick Google search reveals that one can purchase prints of the original architectural plans of renowned architectural works, such as those by Frank Lloyd Wright, Frank Gehry, and Michael Graves. These prints contain as much artistic value as any other prints and thus Wright, Gehry, and Graves deserve the right to control the market for their original drawings just as much as Hopper, O’Keeffe, and Warhol do. Second, while it remains unlawful to construct buildings out of blueprints without the authority of the owners of the copyrights in the blueprints, there are other economic benefits that might come from copying and distributing the blueprint. Other architects might consciously or subconsciously copy those blueprints, without authorization from their authors. Realtors might circulate the blueprints to potential buyers, to promote houses on the market. The purpose of copyright law is to provide incentives to authors to create works by granting them limited monopolies on their works. With nearly no monopolies on their blueprints, architects may find that they lack incentive to create them. More abstractly, this would allow one section of the Copyright Act to invalidate another section of the Copyright Act, thus rendering the entire Act unstable.
In order to ensure that architectural plans remain protected against reproduction and the integrity of copyright law is preserved, Congress or the courts must reiterate the persistent protection of plans as “pictorial, graphic, and sculptural works” and clarify that, while an “architectural work” could be any physical manifestation of architecture, the § 120(a) exception applies only to the constructed exterior (or publicly accessible interior elements, such as the interior of the Capitol building’s dome) of the work. This interpretation is simple, but understanding why it was necessary to add architectural plans to the definition of “architectural works,” how Congress failed to perceive the ambiguities that addition potentially introduced, and where to go from here requires in-depth analysis of the legislative history and text. Part I of this Note will present the requisite background information, including the history of the inclusion of architecture in the Berne Convention, U.S. implementation of the Convention, expert opinions on the language at issue, and international interpretations. Part II will address the problems that have emerged in subsequent case law and the paradox that the intended beneficiaries might not be the actual beneficiaries of this protection. Finally, Part III will present solutions to the problem