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Looking for the Public in Public Law
Full text linkThe “public” is everywhere and nowhere in contemporary public law. Everywhere, in that the term is constantly invoked to justify and explain existing arrangements. Nowhere, in that serious attempts to identify a relevant public and elicit its input are few and far between. Scholars and officials depict the U.S. public as playing myriad roles in governance — checking, guiding, approving, repudiating—without offering an account of how public preferences are formed or how they exercise influence on questions of interest.
This Article seeks to identify and call attention to the foundational dilemmas underlying this disconnect, to clarify their normative contours and intellectual history, and to propose a pragmatic response — grounded in the recovery of the public’s role as an author and not just a monitor of public law. We first detail how public law’s stylized appeals to the public reflect analytic imprecision and inattention to the values, views, and votes of actual people. We then show how these omissions and obfuscations leave public law vulnerable to critiques from both the left and the right, which have been gaining force on account of broad transformations in the administrative state, social structure, and public sphere. It may not be possible to resolve these dilemmas fully or to redeem the public writ large as an agent in public law. But drawing on recent political science work on deliberative democracy, we outline a research and reform agenda for identifying, constructing, and empowering coher¬ent publics (plural) capable of legitimating legal change
Distinguishing Among Climate Change-Related Risks
Full text linkUnderstanding the diverse types of climate change-related risks is crucial for developing effective strategies to address the global climate crisis. A holistic yet disaggregated approach allows for a comprehensive view of the challenges while enabling targeted responses from various stakeholders. This document outlines three main categories of climate-related risks: planetary, economic, and financial, detailing their relevance to various stakeholders, timeframes, and potential response strategies.
This short brief aims to disentangle the complex nature of risk discussions for productive discourse and appropriate risk management approaches for different stakeholders. In practice, discussions related to assessing and responding to climate change risk have conflated categories of risk, confusing discussions and undermining the effectiveness of related strategies. We hope this brief can bring clarity and rigor to analyses of risk and support constructive discussion among policymakers, financial institutions, social sector actors, and the public. We plan to follow this short briefing with a longer report including more detailed analysis, integrating feedback to these initial ideas
Conference Report: Attribution Science and Climate Law
Full text linkThis report provides a summary of proceedings from the Attribution Science and Climate Law conference hosted at Columbia University on January 9-10, 2025. The conference brought together a diverse group of researchers and practitioners to share insights on the status of climate change attribution research and its relevance to climate law and policy. Participants included physical scientists, public health researchers, economists, social scientists, legal scholars, and legal practitioners. The core goals of the event were to facilitate interdisciplinary discussion, advance substantive knowledge in this field, and promote ongoing collaboration between the scientific, legal, and policy-making communities
In Search of a State
Full text linkThis article offers a legal history of one of America’s earliest campaigns of state legislative resistance: the effort in Massachusetts to protest the national government’s perceived dismantling of an old Atlantic commercial order from 1803 to 1815. To date, scholars have either condemned this protest as a dangerous harbinger of the Civil War or vindicated it as an inevitable and salutary extension of the Founding. This article steers a different course. By focusing on the evolving language of protest and the complex hybrid of ideas and material realities from which this language emerged, this article illuminates how Federalist leaders who were determined to preserve New England’s waning influence in an expanding agricultural nation of slavery created a bespoke rule of state protest, one that elites could deploy without fear of inciting democracy or disunion.
When influential Federalists first sketched out a vision of state protest in 1787 and 1788, they enlisted an old Whig theory of politics that imagined society as an organic composite of the people, whose feelings would naturally flow into the state governments for refinement into virtuous sentiments. Conceived in an eighteenth-century political economy anchored in the Atlantic Ocean, this theory proved no match for the seismic shifts of the 1790s. At a time when a surge of elite land speculation and development brought America’s territorial and class lines into sharper relief, a wave of grassroots political mobilizing insisted on the right of the people to speak directly to power. To stave off this specter of mass politics, Federalist elites embarked on a search for a new rule of state protest. By 1814, this iterative search had coalesced around the idea of the state as a sovereign entity, one whose voice would be activated not by the whim of the people’s feelings, but by the mollifying rules of procedure. In this new order, a state’s speech would encompass not simply virtuous sentiments to be exchanged among a natural aristocracy, but constitutional arguments that could funnel people from the streets to the courts.
This account enriches our understanding of American federalism. Rather than seeing the state and federal governments as fixed entities, it joins recent work that recasts these governments as contested categories. But instead of focusing on the well-mapped political arena, it shows how and why the harvesting of the material world shaped the often haphazard invention of a state. In doing so, it brackets the abstract debate of which federal-state configuration produces the most “good.” Instead, it shows how, amidst a broader project to transform land into waterways and cotton into cloth, Federalist lawyers carefully fashioned a rule of state protest that could keep New England’s merchant ships and cotton mills in motion
Constraining the Family Regulation System: The Contribution of the Restatement of the Law, Children and the Law
Full text linkAdvocates, policymakers, and scholars have argued for years that the family regulation system (also known as the child welfare system) fails families. Critics rightly note that the system does far too little to support families proactively and does not address the poverty and structural racism underlying many allegations of child abuse and neglect. The overrepresentation of Black, Native American, and Native Alaskan children in foster care is a stark and disturbing manifestation of these failings.
In response to these concerns, there is an active debate about abolishing or radically reforming the family regulation system to direct government funding to proactive support for families. Given the limits of a Restatement, the Restatement of the Law, Children and the Law will not eliminate the family regulation system or reallocate billions of dollars in government funding. Those kinds of changes require legislative action reflecting political will and broader social change. By their nature, Restatements are not law reform projects and instead are an effort to restate the law as it exists.
Restatements do, however, capture the trajectory of the law. In the words of the American Law Institute, Restatements are “intended to reflect the flexibility and capacity for development and growth of the common law.” The sections discussed in this essay reflect the promising trajectory of some areas of doctrine in the family regulation system.
As this article shows, the Restatement plays a useful role in limiting the reach of the family regulation system, even as the broader debate about the future of the system continues. By articulating guardrails for state intervention and identifying promising developments in the law, the Restatement makes an important contribution to the present operation of the law. Additionally, the child wellbeing framework embedded in the Restatement is a sound basis for policies that offer proactive support for families, although the Restatement itself cannot implement such policies
Restating the Law of Children and Youth: The Evolution of Reform
Full text linkA brief roadmap of this article may be helpful. Part I describes the emergence of the Child Wellbeing framework and its powerful role in shaping twenty-first-century youth justice reforms captured by the Restatement. Part II shows how this framework has begun to have a far broader influence on the law affecting children and how the framework and the developmental approach embodied in the Restatement can guide courts and shape the trajectory of the law in the future. Part III explores potential challenges to the Restatement’s effectiveness in attaining a fully integrated system based on the Child Wellbeing framework
Transforming the World with Reparations?
Full text linkThis special issue of the American Journal of International Law — devoted entirely to reparations in international law — offers a range of perspectives on reparations for large-scale harms relating to colonialism, slavery, industrialization, and transboundary pollution. As the symposium authors describe, the gap between the reparations that justice might demand and the ones that international law provides is enormous. The international law for reparations does not come close to remedying such harms and is not poised to do so anytime soon.
Although the gap between international law and the demands of justice is frequently explained by power politics, identity-based biases, or self-interest, it is also conceptual. Claims for reparations in international law commonly reflect two competing visions — one transformative and a second corrective. The transformative vision emphasizes that large-scale historical harms continue to generate massive structural inequalities. Redressing these harms in systemic ways is, in the transformative vision, necessary to end the patterns and practices that developed in the past but continue to disadvantage entire groups today. What makes this vision “transformative” — or to use another word, “worldmaking” — is that it looks to use reparations to end the long tail of injustices associated with large-scale historic harms, to improve the lives of those who still suffer from them, and in the process to transform, rather dramatically, a now unequal global order that is said systematically to perpetuate them
Litigating National Security in the WTO Era
Full text linkFrom one dispute between 1948 and 1994, there have now been 14 requests for a panel establishment (based on the General Agreement on Tariffs and Trade (GATT), Article XXI – the exception for national security) during the World Trade Organization (WTO) era (1995–now). The majority of them ended up in the issuance of a panel report, all of which were issued after 5 April 2019. As the WTO Appellate Body has been dysfunctional as of November 2019, no appellate report has been issued. Appeals have been lodged, but as there is no Appellate Body to entertain them, they were lodged ‘into the void’, thus depriving the panel reports of any legal significance.
The panel reports constitute only the tip of the iceberg. There are dozens of notifications, and a high number of specific trade concerns have been raised before WTO bodies. A likely explanatory variable is that, unlike the GATT (which was established by the winners of WWII, who, with minor exceptions, were like-minded players, initially at least), the WTO has been a global institution ab initio. 80Swayed by the spirit of a unipolar world, it gradually encompassed heterogeneous players. Frictions between them, like the Ukraine-Russia conflict, were translated into trade frictions as well. Geopolitics, as Hoekman et al have argued, have had a lot to do with the observed phenomenon
International Legal Guidelines for Marine Carbon Dioxide Removal Governance under the London Convention and London Protocol
Full text linkFor the past two decades, parties to the London Convention and Protocol have negotiated rules, decisions, and amendments related to climate change. These efforts have principally focused on two sets of technologies – sub-seabed carbon dioxide storage and marine geoengineering. Initial discussions regarding marine geoengineering focused specifically on ocean fertilization but, more recently, the parties have considered an expanded array of marine carbon dioxide removal (mCDR) approaches, including ocean alkalinity enhancement and ocean sinking of biomass. Throughout these discussions, the parties have invoked legal principles and guidelines, like the precautionary approach, to inform their assessment of how to apply the London Convention and Protocol to these climate-related activities. Recent developments in international law, including important pronouncements by the International Tribunal for the Law of the Sea and the International Court of Justice on the application of international law in the context of climate change, shed new light on the meaning and scope of these legal principles and guidelines. Drawing on these seminal opinions, this paper identifies legal principles and guidelines that are relevant to the regulation of climate-related activities under the London Convention and Protocol and discusses their application in the context of mCDR specifically. The paper focuses on four principles and guidelines –prevention, precaution, due diligence, and environmental impact assessments. It concludes that proper application of these principles and guidelines requires at last four actions: Parties should apply the precautionary principle in a way that does not unduly delay actions to protect the environment, including climate mitigation actions. Parties should apply the prevention principle at least on equal footing with the precautionary principle and, to this end, consider the potential for regulation to aid in preventing transboundary harm from climate change. Parties should exercise their stringent due diligence obligations to assess whether mCDR techniques are readily available technologies to mitigate climate change and should actively pursue scientific information that will aid them in making this assessment. When conducting environmental impact assessments (EIAs) to determine whether individual mCDR projects should go forward, parties should analyze the projects’ climate mitigation benefits alongside their potential environmental harms
Time for States to Flex Their Legal Muscles
Full text linkIn these dark several years ahead, with all three branches of the federal government moving backwards on environmental protection, the states can do much to stem the retreat