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Perspectives on \u3cem\u3eThe Constitution of the War on Drugs\u3c/em\u3e: A Collection of Posts from the Balkinization Blog
Get PDFThis collection of essays provides extended commentary from multiple law professors on David Pozen’s 2024 book, The Constitution of the War on Drugs. Pozen’s book provides a rich and astute perspective on a wide array of dynamic legal, political, and social stories at the intersection of constitutional jurisprudence and drug policy. The work is the first book in Oxford University Press’s Inalienable Rights series to be fully open access. Yale Law Professor Jack Balkin, recognizing the book engaged many historical and cutting-edge issues in the fields of constitutional law, criminal law and health law, invited professors in these fields to contribute to an online symposium on The Constitution of the War on Drugs hosted on his blog, Balkinization. The group of commentators are Rachel Barkow, Paul Butler, Jennifer Oliva, Shaun Ossei-Owusu, Kimani Paul-Emile, Louis Michael Seidman, and Katherine Shaw. Pozen also provided an extended response to these commentators. This publication is a collection of these commentaries, with an introduction by Douglas A. Berman, Newton D. Baker-Baker & Hostetler Chair in Law and executive director of the Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law
Urban Flooding: Legal Tools to Address a Growing Crisis
Get PDFWhile sea level rise has long received a great deal of attention, another impact of climate change is now getting greater notice — increases in extreme precipitation. As the atmosphere warms, it can hold more moisture; for every increase of one degree Celsius, seven percent more water vapor is carried in the air. When that moisture is quickly released as intense rainstorms, stormwater systems can be overwhelmed, and cities can suffer devastating floods.
The frequency and intensity of heavy precipitation events have increased since the 1950s over most of the world\u27s land areas. One 2023 study — generally consistent with several prior works — projected a 51.6% increase in extreme precipitation in the northeastern United States by the end of the 21st Century. What have historically been called 100-year storms (indicating that a storm of that magnitude has a one-in-one-hundred chance of occurring in a given year) are now occurring as often as every five or ten years. In one five-week period in 2022, places in several different parts of the U.S. (St. Louis, eastern Kentucky, eastern Illinois, Death Valley, California, and Dallas-Fort Worth) were all struck by what were called 1,000-year rain events — storms with a one-in-one-thousand chance of occurring in a given year. On top of extreme rainfall, storm surge worsened by sea level rise can devastate coastal cities, but even inland locations that are near — or not so near — rivers can see similar destruction. In addition to the disruption of property, many illnesses can result when stormwater causes the release of untreated sewage onto the surface of, and into, waterways. Ecological impacts, such as increased fish mortality caused by the polluting runoff, also occur.
There is ample literature on flooding caused by sea level rise. The focus of this article, however, is on flooding in cities caused primarily by rain combined with land-use patterns and inadequate stormwater drainage. Though, of course, the two often combine.
This article proceeds as follows. Part I discusses the nature of the growing crisis in urban flooding, how precipitation is estimated, and how expected flooding is (or is not) disclosed in maps and otherwise. Part II shows the roles of the different levels of government — federal, state, and local — in addressing urban flooding. Part III goes through the various physical methods of coping with urban flooding (grey infrastructure, infiltration, storage, defense, accommodation, and retreat), and some of the associated legal implications. Part IV concerns how the physical methods discussed in Part III can be financed. Part V concludes with thoughts on setting priorities
Going Beyond Mere Transformation: \u3cem\u3eWarhol\u3c/em\u3e and Reconciliation of the Derivative Work Right and Fair Use
Get PDFThe Supreme Court’s recent decision in Andy Warhol Foundation for Visual Arts, Inc. v. Goldsmith is a watershed moment in the story of copyright jurisprudence. At its broadest, the decision articulates a unified vision — one that had been dormant in the lower court fair use jurisprudence — about the role of copyright and the manner in which to make sense of its effort to balance exclusivity with its myriad limitations. This Essay focuses on how the Court reconciled the working of the statute’s derivative work right with the breadth and reach of the “transformative use” version of the fair use doctrine. The core of the Court’s reconciliation centers around three ideas. The first is the need for an independent justification for a use to even qualify for fair use. Transformation on its own does not provide such a justification, which must be instead identified independently. Related is the second idea, that the secondary use must reveal a distinct purpose. Unlike the justification element, this step is comparative and heavily contextual. And the third element is the balance between transformativeness and commerciality, which the legislative text makes clear and Campbell had gone to extreme lengths to reinforce
Delegation Run Amok
No full textThe proper allocation of authority between courts and arbitral tribunals over the enforceability of agreements to arbitrate has long occupied a central place in United States arbitration law, domestic and international alike. From US Supreme Court case law over the years, there has emerged a reasonably well-understood distinction between those issues of enforceability that a court will address if asked by a party to do so and those that it will not. Fundamental to the Court’s jurisprudence is a recognition that some enforceability issues — “gateway issues” — so seriously implicate the consent of parties to arbitrate their disputes that a party contesting the enforceability of an arbitration agreement on those grounds is entitled to a judicial determination of the matter, while others — “non-gateway issues” — do not. Complicating the gateway/non-gateway distinction is the Supreme Court’s recognition that parties remain free, in an exercise of party autonomy, to reserve the determination of gateway issues exclusively for arbitral determination, thereby foregoing access to a court on those matters. In the Court’s terminology, parties thereby “delegate” to a tribunal exclusive authority to determine issues over which a party would ordinarily be entitled to an independent judicial determination. This chapter considers the capacity for parties to “delegate” such authority to tribunals, including the means by which they may indicate their clear and unmistakable intent to do so
Dynamic Diffusion
No full textResearch on legal diffusion typically focuses on laws’ initial adoption and ignores their later evolution. We develop a typology of three subsequent diffusion patterns: convergence, when countries revise laws to move closer to leading regulators; customization, when countries revise laws to move away from leading regulators; and stagnation, when countries cease legislating, leaving initially adopted laws in place. We then propose a general theory suggesting that economic size and geographic distance from leading regulators predict which of the three patterns countries follow. We explore this theory with case studies on the dynamic diffusion of antitrust laws in Russia, Colombia, and Australia
Climate Allocation Compass, a Framework for Real-World Decarbonization (Compass-FRWD)
Get PDFClimate finance currently falls far short of what\u27s required to achieve net-zero targets. In a collaboration with the Man Group, we offer a framework setting out how investors can help to close this gap.
Key takeaways: To address the global climate finance gap,CCSI and Man Group have developed the Climate Allocation Compass, a Framework for Real-World Decarbonization (‘Compass-FRWD’). Compass-FRWD is a six-step asset allocation framework designed to guide strategic capital investment across multiple portfolios. It does so by setting financing targets relative to real-world emission gaps, thereby prioritizing sectors and geographies according to decarbonization needs. Compass-FRWD provides a cyclical, investor-level framework, taking a multi-asset class approach to achieving optimal capital allocation through continuous adaptation and learning. Overcoming investment barriers also requires collaboration across financial services, with asset owners, policymakers and multilateral development banks. It requires bolstering issuers’ corporate transition strategies, addressing data reliability issues, and enlarging the universe of investable opportunities
The Transformation of European Climate Litigation
Get PDFIn Spring 2024, the European Court of Human Rights ruled for the first time that inadequate climate mitigation violates human rights. The Court’s landmark rulings have significant implications, ranging from the design of domestic climate laws and questions of standing to international trade issues and the European Union’s climate governance.
Building on a symposium by Verfassungsblog and the Climate Law Blog, this book offers the first comprehensive assessment of the rulings in KlimaSeniorinnen, Duarte Agostinho, and Carême. It explores key innovations, missed opportunities, and the untaken paths in European climate litigation
Financial Inclusion, Cryptocurrency, and Afrofuturism
Get PDFAs a community, Black people consistently face barriers to full participation in traditional financial markets. The decentralized nature of the cryptocurrency market is attractive to a community that has been historically and systematically excluded from the traditional financial markets by both private and public actors. As new entrants to any type of financial market, Black people have increasingly embraced blockchain technology and cryptocurrency as a path towards the wealth-building opportunities and financial freedom they have been denied in traditional markets. This Article analyzes whether the technology’s decentralized system will lead to financial inclusion or increased financial exclusion. Without reconciling the racially discriminatory history or effects of the current central financial system, the innovative decentralized appeal to Black people will do little to overcome economic inequity. It may be possible that some cryptocurrencies can be tools for financial inclusion by improving economic outcomes and building wealth outside of traditional financial institutions, but without an intervention, a decentralized system will not necessarily lead to decentralized wealth.
The rise of cryptocurrency presents an opportunity to think about how to create a fairer, more inclusive financial system. Taken together with the financial exclusions of the past, cryptocurrency can be a vehicle through which we think about true financial inclusion. However, asking traditionally marginalized groups to participate in an extremely risky cryptocurrency market in pursuit of racial equity is an unrealistic solution given the legacy and reality of financial exclusion. A decentralized system cannot fix the systemic racial inequality that has been embedded in our financial systems. This Article proposes using an Afrofuturist framework in the shaping of policy toward cryptocurrency. An Afrofuturist paradigm pushes for systemic problems to be solved through wholesale systems change rather than tinkering at the margins. Moving forward using an Afrofuturist lens would facilitate a rethinking of our financial systems and the role of cryptocurrency as a portal for racial equity
\u3cem\u3eBriggs v. Southwestern Energy Production\u3c/em\u3e: Hydraulic Fracturing and Subsurface Trespass
Get PDFThe tort of trespass to land has proven to be controversial as applied to airplane overflights (and more recently to drones) as well as to oil and gas production using hydraulic fracking technology. The key to applying trespass to intrusions above and below the surface of land is to distinguish between possession of land and the right to possess land. Surface owners have the right to possess the column of space above and below the surface (a kind of option value), but only to the extent that this space is subject to possible effective possession. The Pennsylvania Supreme Court in Briggs v. Southwestern Energy Production concluded that fracking can result in physical intrusions that can be detected using available monitoring technology. The court further concluded that such physical intrusions should be subject to trespass liability. We argue that these conclusions are correct insofar as such intrusions interfere with a surface owner’s possible effective possession – the action of the intruder necessarily means that the surface owner could also find it economically advantageous to engage in production activity in this portion of subsurface space itself. The decision confirms the utility of the law of trespass to the architecture of property, in that it establishes an indispensable baseline against which exchanges of rights and regulatory modifications of rights can occur
State Constitutional Rights and Democratic Proportionality
Get PDFState constitutional law is in the spotlight. As federal courts retrench on abortion, democracy, and more, state constitutions are defining rights across the nation. Despite intermittent calls for greater attention to state constitutional theory, neither scholars nor courts have provided a comprehensive account of state constitutional rights or a coherent framework for their adjudication. Instead, many state courts import federal interpretive practices that bear little relationship to state constitutions or institutions.
This Article seeks to begin a new conversation about state constitutional adjudication. It first shows how in myriad defining ways state constitutions differ from the U.S. Constitution: They protect many more rights, temper rights with attention to communal welfare, include positive rights that identify government action as necessary to liberty, and emphasize rights required to sustain democracy. These distinctive founding documents, prizing individual and collective self-determination alike, require their own implementation frameworks — not federal mimicry.
Although state constitutions differ markedly from their federal counterpart, they share features with constitutions around the world that courts adjudicate using proportionality review. Perhaps unsurprisingly, practices associated with proportionality already appear in some state decisions. Synthesizing and building on these practices, this Article argues for democratic proportionality review as a state-centered approach to adjudication. Such review tailors proportionality’s decisional framework to state constitutions committed to popular, majoritarian self-government, and it recognizes state courts as democratically embedded actors, not countermajoritarian interlopers. After explaining how democratic proportionality review operates, the Article sketches some implications for contemporary debates about abortion, voting, occupational licensing, and more