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Methane Removal Under the Paris Agreement
Full text linkIn the 2015 Paris Agreement, the international community agreed to “strengthen the global response to climate change” by limiting the “increase in global average temperatures to well below 2 degrees Celsius above pre-industrial levels, and ideally to 1.5 degrees Celsius. As recognized in the Agreement, to stay within these limits, global greenhouse gas emissions must be rapidly reduced, “so as to achieve a balance between anthropogenic emissions by sources and removals by sinks of greenhouse gases in the second half of this century” — a situation commonly described as “net zero.” The need to reach net zero has prompted growing interest in developing strategies to remove greenhouse gases from the atmosphere. While greenhouse gas removal cannot substitute for emissions reductions, it is likely a necessary complement to them, required to offset residual emissions for which there are no feasible control technologies.
One suite of greenhouse gas removal techniques currently receiving attention targets methane in the atmosphere. A short-lived but highly potent greenhouse gas, methane is emitted through various human activities (e.g., agriculture and fossil fuel production), as well as from natural sources (e.g., wetlands). The natural emissions, in particular, are difficult to control and expected to increase significantly in coming years due to climate change. In theory, atmospheric methane removal could help to compensate for increasing natural methane emissions, as well as hard-to-abate anthropogenic emissions. Atmospheric methane removal should not, however, be used as an excuse to delay implementing feasible emissions reduction strategies where they exist.
Scientists have proposed a range of atmospheric methane removal techniques. All are still in the early stages of development and require further research, but could, in theory, accelerate the conversion of methane in the atmosphere into other chemical species with lower global warming potential (e.g., carbon dioxide). Initial research suggests that this could have significant climate benefits but, to date, atmospheric methane removal has received little attention in international discussions regarding climate change. It was not considered at all when the Paris Agreement was negotiated and, in the ten years since, has been raised only in passing in debates about how to operationalize the Paris Agreement Crediting Mechanism (PACM). While this is understandable given the early stage of development of the field, as interest in atmospheric methane removal grows, so too does the need to understand whether and how it fits within the Paris Agreement framework.
This paper provides the first comprehensive analysis of methane removal under the Paris Agreement. The paper explores the role that atmospheric methane removal might play in achieving the goals of the Paris Agreement (Part 3), whether parties to the Paris Agreement could rely on atmospheric methane removal as a climate change mitigation strategy under the Paris Agreement (Part 4), and the potential for atmospheric methane removal projects to participate in the PACM (Part 5)
Law Enforcement Privilege
Full text linkYou can’t question a secret you haven’t been told. The criminal legal system depends on fair and open proceedings to expose and regulate unlawful and unconstitutional police conduct through the courts. If police can use claims of secrecy to systematically thwart criminal defendants’ access to evidence, judicial review will fail. And yet that is exactly what is happening under a common-law doctrine called the “law enforcement privilege.” The privilege empowers police and prosecutors to rely on the results of secret investigative methods while withholding information from the defense about how those methods work. It risks perpetuating unconstitutional conduct, enabling wrongful convictions, and rendering Fourth Amendment, Sixth Amendment, Brady, and statutory discovery laws moot. At the same time, it has a non-frivolous policy rationale. If all police investigative methods were public information, then more people committing crimes could evade detection.
How can a better balance be struck? This Article argues that current law enforcement privilege doctrine creates a dangerously boundless police secrecy power because of a subtle conceptual collapse: The policy rationale itself is mistakenly used as the test for assessing claims of privilege. The Article recommends that courts instead evaluate privilege claims by reference to the marginal risk of leaking posed by in-court disclosure. Specifically, judges should demand to know what conditions law enforcement previously imposed on access to the information. The answer to that question can be adjudicated publicly without jeopardizing a legitimate privilege claim and will help judges detect mistaken, exaggerated, pretextual, or fraudulent claims to the privilege. Further, even when law enforcement has taken care with the information, if a court-ordered protective order can match or exceed the safeguards that law enforcement itself previously maintained, then judges should default to ordering disclosure. The Article concludes by suggesting a theory of the role of confidentiality in privilege law
Too Many Mergers? The Golden Parachute as a Driver of M&A Activity in the 21st Century
Full text linkThis Article argues that the corporate governance regime in the United States has produced a level of mergers and acquisition activity greater than the social optimum because of the current version of the “golden parachute,” a super-bonus payoff to a target CEO. In the late nineteenth through the twentieth century, M&A activity was characterized by “waves” that reflected adaptations to changing external environment, whether the efficient production frontier, regulatory constraints, or capital market developments. Economically-motivated parties saw the opportunities in changing the boundaries of the firm; successful first-movers spawned imitators, hence a wave, which eventually subsided, often alongside deteriorating capital market conditions.
The twenty-first century is different. There is a persistently high level of M&A. Yes, there are fluctuations, but not “waves.” This pattern can be explained at least in part by an important internal governance change, the transformation of the golden parachute into a high-powered driver of M&A activity. Golden parachutes were introduced as a corporate governance innovation in the 1980s to overcome managerial hostility to an unsolicited premium bid. Over time, especially as executive compensation radically shifted toward stock-based pay, golden parachutes have become increasingly lucrative. They now provide a CEO with a high-powered incentive to become a target CEO, compensating the CEO like a deal-hunting investment banker, and thus have changed the pattern of M&A activity. Historically M&A activity has been a response to changes in the external environment. Without reflective intentionality, golden parachutes have become an independent (and internal) driver of M&A activity. The distortive effects of golden parachutes result in efficiency losses at the firm level, produce social losses because of excessive layoffs, and because of the resultant “inequality with privity,” will exacerbate social resentments that may have political consequences.
This incentives mismatch can be addressed by shareholders as part of the annual Say-on- Pay vote. The simplest adjustment would be the elimination of the acceleration of unvested equity awards for target CEOs triggered by M&A
The Changing Architecture of Trust
No full textTrust has always been vital to the healthy functioning of financial markets and the stability of the financial institutions. The mix of public and private institutions that undergird this trust, however, can vary. Often these forces are ignored or taken for granted until something goes wrong. With a marked turn toward deregulation taking hold on both sides of the Atlantic, against a backdrop of central banks having played a very active role intervening to allay distress, it is a good time to revisit these fundamentals. This essay examines the importance of trust, how it is created, how it can be lost and how difficult it can be to rebuild. It concludes with some reflections on the current moment
THC Ingestions and Child Protective Services: Guidelines for Practitioners
No full textThe decriminalization of tetrahydrocannabinol (THC)-containing products has resulted in an increased presence of these products in households. This increased presence, along with frequent use of product packaging that mimics recognizable and appealing treats, has led to a rise in accidental ingestions of THC-containing substances by children. Some clinicians and child protective services (CPS) professionals have recommended that every accidental THC ingestion by a child, irrespective of the circumstances, should be reported for investigation by CPS. We argue that this recommendation has the potential to waste scarce resources, harm families, and worsen current inequities in CPS reporting. We offer an alternative framework to this blanket recommendation that clinicians can employ when providing care to a child who has ingested THC
State Constitutional Law: Cases and Principles
No full textThe First Edition of State Constitutional Law: Cases and Principles provides a contemporary, authoritative treatment of the field. Developed by two of the subject’s leading experts, the book offers a fully national picture of the state constitutional topics it covers, complete with majority approaches and alternatives across the country. The book provides detailed treatments of the wide range of state constitutional issues — not only rights, but also government structure, democracy, fiscal provisions, and intrastate relations. The book emphasizes that state constitutions differ in important ways from the U.S. Constitution and are worth studying on their own terms, while also putting state constitutions in dialogue with their federal counterpart and exploring the role of state constitutions in a federal system. The book and accompanying teacher’s manual are designed to be engaging and accessible to first-time teachers and students of state constitutional law, while also offering notes, questions, and essays to challenge those who already have experience with state constitutional law.https://scholarship.law.columbia.edu/books/1405/thumbnail.jp
Comparative Constitutional Law
No full textDesigned for use in law school courses, Comparative Constitutional Law introduces fundamental debates on the nature of constitutions, constitutional comparison, and the relationships between constitutions and constitutionalism in its various forms. The book explores how constitutions are made and changed, including recent applications of unconstitutional constitutional amendment doctrines, and the role of different institutions - legislatures, executives, publics, as well as courts - in constitutional interpretation and constitutional change. Following a detailed study of the structure and interpretive approaches of national apex courts that decide constitutional questions, the book goes on to consider six subject areas of importance in contemporary constitutionalism: separation of powers and emergencies; federalism and related consociational constitutional arrangements; equality and pluralism; religion; free expression; and positive rights or duties.
Including excerpts of cases and scholarly material from the Global South, Europe, and North America, this volume emphasizes the need to understand the broader sociolegal contexts in which constitutional design and decisions occur. In response to growing trends of democratic retrogression in courts around the world, this new edition provides expanded coverage of abusive constitutionalism, authoritarianism, and illiberalism. It additionally offers insightful discussions on constitutional actors\u27 responses to the COVID-19 pandemic; gender and LGBTQ+ equality issues; and indigenous peoples\u27 rights and environmental rights.
Providing an overview of constitutional law that is both comprehensive and accessible, the fourth edition of Comparative Constitutional Law is an invaluable resource for law students and academics.https://scholarship.law.columbia.edu/books/1406/thumbnail.jp
Intellectual Property in the New Technological Age, Vol. I: Perspectives, Trade Secrets and Patents
No full textIntellectual Property in the New Technological Age provides an in-depth survey of the rapidly evolving field of intellectual property law. Volume I covers philosophical perspectives, trade secret law, and patent law. Volume II covers copyright law, trademark law, and state intellectual property law protections.https://scholarship.law.columbia.edu/books/1372/thumbnail.jp
Trade Integration
No full textAccounts concerning the world trading system usually start the debate from the negotiation of the GATT. Trade integration before the First World War, though, had been quite remarkable, and the study of this era enriches our understanding of modern institutions in at least two ways. First, a number of GATT provisions had already been shaped during discussions following the advent of the League of Nations. Second, trade integration before the First World War did not manage to put a brake on belligerent behaviour, putting to rest the old Montesquieuan idea of doux commerce. Recent developments (like the invasion of Ukraine by Russia) can be analysed in this context, so that the world trading community can better grasp the limits of trade integration, and its impact on international relations
Disqualification, Immunity, and the Presidency
Full text linkTrump v. Anderson and Trump v. United States were two momentous decisions in a momentous Supreme Court term. Sharing then former — and now current — President Trump as a party, the decisions hold important implications for presidential power and accountability.
Anderson arose from a suit brought by Colorado voters to challenge Trump’s inclusion on the Republican primary ballot in that state. They argued that Trump organized and incited the mob that attacked the Capitol on January 6, 2021, and disrupted the Electoral College vote count and certification. In their view, this disqualified him from serving as President under section 3 of the Fourteenth Amendment, which (in relevant part) bars any person who took “an oath ... to support the Constitution ... [and then] engaged in insurrection or rebellion” from “hold[ing] any office ... under the United States.” The Colorado Supreme Court agreed, but the United States Supreme Court reversed, in a per curiam decision with four Justices concurring. It held that the states lack authority to enforce section 3 against federal officeholders and candidates for federal office, concluding that the Constitution assigns that responsibility to Congress.
Trump v. United States arose out of Special Counsel Jack Smith’s investigation and a grand jury’s indictment of Trump for conspiring to overturn the results of the 2020 presidential election “by spreading knowingly false claims of election fraud.” Trump sought to have the indictment against him dismissed on grounds of presidential immunity. The D.C. District Court and the D.C. Circuit both rejected this effort, but the Supreme Court vacated and remanded, this time by a 6–3 vote. It held that a former President enjoys absolute criminal immunity for exercises of core presidential powers and is at least presumptively immune for other official actions.
In Structural Logics of Presidential Disqualification, Professor Aziz Huq trains his eye primarily on Anderson, carefully dissecting the arguments offered by the per curiam opinion and demonstrating their substantial analytic inadequacy. Huq contends that “three distinct structural logics,” or arguments rooted in constitutional structure, underlie the opinion. These logics, sounding in “federalism, the separation of powers, and democracy,” are interwoven with prudential and consequentialist concerns about the national impact of state enforcement of section 3 against presidential candidates. Left by the wayside are the type of textual and historical arguments that the Roberts Court usually claims to prioritize in constitutional analysis. Huq chides the Court for its methodological inconsistency, but the bulk of his critique aims to show the analytic flaws in these structural arguments