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Overlapping Remedies
No full textWhen many parallel lawsuits arise from the same event, they create the risk of overlapping remedies – multiple redundant awards of punitive damages, for example, or conflicting injunctions issued by different courts. The standard response is to aspire to once-and-for-all resolution, relying on procedures that aggregate claims and preclude further litigation. This chapter examines why two such procedural devices – class actions and multidistrict litigation (MDL) – do not generally rule out overlapping remedies. It then reviews proposals for an alternative approach, one based on the concept of ‘concurrent remedies’. This approach can deflate redundant punitive damages and avoid a clash of injunctions in contexts where parallel litigation is unavoidable – including where the standard procedural devices fall short
Global Climate Litigation Report: 2023 Status Review
Get PDFThis Global Climate Litigation Report: 2023 Status Review, which updates previous United Nations Environment Programme reports published in 2017 and 2020, provides an overview of the current state of climate change litigation and an update of global climate change litigation trends. It provides judges, lawyers, advocates, policymakers, researchers, environmental defenders, climate activists, human rights activists (including women’s rights activists), NGOs, businesses and the international community with an essential resource to understand the current state of global climate litigation, including descriptions of the key issues that courts have faced in the course of climate change cases
Practicing Queer Legal Theory Critically
Get PDFThis introduction to the Critical Analysis of Law special issue on queer legal studies excavates three conjugal artifacts: an academic manuscript delineating interracial and same-sex marriages as loci of state surveillance and unfreedom; a TED Talk on same-sex marriage as irrefutably queer; and the United States Supreme Court decision holding same-sex marriage a constitutional right. These artifacts, along with their singular referent (state-sanctioned marriage), point to what is or should be critical about the interdiscipline of queer legal studies: theorization not only of the subjectification of subjects of gender and sexual regulation (spouses, singles, you and me), but also theorization of the subjectification of power (here, state power and state formation). What kind of state, and what kind of power, materialize through the governance of sex, intimacy, and coupledom? This methodological imperative complements and productively conflicts with the contributions of this issue, all of which turn their gaze away from the subjectification, domestication, or normalization of the usual, sexual minoritarian suspects, but only some of which explicitly articulate the state-making power of sex and gender
Liability Beyond Law: Conceptions of Fairness in Chinese Tort Cases
Get PDFEmpirical work consistently finds that Chinese courts resolve civil cases by finding a compromise solution. But beyond this split-it-down-the-middle tendency, when and how do Chinese courts arrive at decisions that feel “fair and just” in cases in which they invoke those ideas? Drawing on a data set of 9,485 tort cases, we find that Chinese courts impose liability on two types of parties with ethical, but not legal, obligation to victims: (1) participants in a shared activity and (2) those who control a physical space. In these cases, Chinese courts stretch the law to spread losses through communities and to acknowledge traumatic harm. Considering fairness, then, returns Chinese courts to their longstanding role as managers of communities who respond to misfortune by assigning legal responsibility to relationships that range from intimate to surprisingly tenuous
Debt Textualism and Creditor-on-Creditor Violence: A Modest Plea to Keep the Faith
Get PDFIn this article, we argue that debt textualism played a key role in laying the groundwork for our present malaise by encouraging contracts to become increasingly bloated, complex, and rigid up to the point of buckling completely. The dense contractual landscape wrought by debt textualism, when freshly populated with a calculating coterie of financial mercenaries, has transformed corporate lending markets into an elaborate and costly contest of Hunger Games-worthy contractual “gotcha” where (a) lenders scour loan agreements for unappreciated loopholes to undercut borrowers; (b) borrowers do the same in an attempt to counteract lenders; and (c) permutated coalitions from both groups conspire to kneecap one another. The end result is bitterly ironic: The current landscape severely undermines the very goals of transparency, uniformity, and predictability that textualism was supposed to deliver, as investors and issuers mercenarily scavenge through a wordy forest of express contractual terms, hoping to uncover unforeseen opportunities to blindside their adversaries. As a result, the advertised predictability of debt textualism devolved into an aleatory parlor game over who emerges as the best (or the luckiest) scavenger. The resulting uncertainties are not just confined to direct participants; they also have profound implications for company viability, affecting workers, customers, suppliers, and other corporate stakeholders. They even spill over to systemic risk concerns because deleterious disputes over distressed debt provisions are likely to be strongly correlated with an economic downturn (which some predict is on the horizon, as of this writing). The bottom line, we argue, is that our current reality of debt textualism imposes significant, unreasonable burdens on lenders, borrowers, credit markets, and society at large
Possible Avenues for Action Related to the Equal Rights Amendment
Get PDFResolutions have been introduced into both the House and the Senate declaring the Equal Rights Amendment (ERA) to be fully ratified as the 28th Amendment to the U.S. Constitution. There are other legislative steps that—while short of declaring the ERA fully ratified — could be taken to advance the measure toward final ratification, and to create political facts that would reinforce the position that the ERA is already the 28th Amendment
Commentary: Nature-Based Insetting: A Harmful Distraction from Corporate Decarbonization
Get PDFCarbon offsetting is used worldwide on a massive scale, purportedly to mitigate climate change by capturing atmospheric carbon or by increasing or protecting carbon storage. Yet, in recent years, offsetting has been increasingly criticized as a strategy that can harm Indigenous peoples and local communities, exacerbate land inequality, and, paradoxically, worsen the global climate crisis. “Carbon insetting” has emerged as an alternative approach to offsetting that localizes nature-based solutions projects and other greenhouse gas removal activities within company value chains and has been adopted by major global brands such as Nestlé, PepsiCo, and Burberry. This commentary takes a deep dive into insetting projects that employ nature-based solutions, finds that they are likely to suffer from many of the same shortcomings as nature-based offsetting, and argues that corporate reliance on insetting should be treated with extreme skepticism
Columbia Law School’s ERA Project Releases New Policy Paper Demonstrating Race-Based Gap in Who Benefits From Sex Discrimination Laws
Get PDFNew York, New York – On February 27, 2023, Columbia Law School’s Equal Rights Amendment (ERA) Project released a new policy paper showing that despite sweeping federal, state, and local laws that prohibit discrimination on the basis of sex in virtually all significant aspects of the U.S. economy and society, white women have been the primary beneficiaries of sex equality laws, leaving women of color significantly behind
Tribute to R. Kent Greenawalt: A Common-Law Thinker in a Text Driven Age
Get PDFKent Greenawalt was my colleague and friend for half a century. Over those years, we shared responsibility both for students at the beginning of their legal studies and for candidates for the doctoral degree. The course in Legal Methods, while we each taught it, was an intensive three-week, thirty-nine class hour introduction to legal studies that divided its attention between common law case analysis and statutory interpretation; Kent’s nuanced understanding of both profoundly shaped my approach to each. In the doctoral program, he offered a graduate seminar on jurisprudence; my responsibility was for a seminar on legal education. Sharing these few students opened for me a window into his open and balanced approach to a subject easily given to forms of orthodoxy, the affection and deep respect his students had for him, and his extraordinary qualities as a mentor for students who would themselves go on to distinguished positions in legal education
Our Avatars, Ourselves
Get PDFOn 2013 an episode of the British TV show Black Minvrimagined a harrowing possibility: that technology might allow us to recreate the dead. A young woman named Martha loses her partner in a sudden accident and copes with the loss-or perhaps refuses to cope with itwith the assistance of an unnerving artificial intelligence, trained on her partner\u27s data footprint, that can speak, act, and appear exactly as he did. It\u27s not long before Martha becomes obsessed with the emulation, gathering every remnant of her partner\u27s life to incorporate into the model and spending hours on the phone conversing with his voice\u27\u27 rather than with her living loved ones.
Perhaps the most gut-wrenching aspect of the episode is how much of it might be empathized with. It\u27s easy to understand Martha\u27s desperation to escape the pain oflosing a loved one. Who wouldn\u27t be tempted to do so by clutching onto such an avatar-even while knowing that to deny the finality of death would be the ultimate act of self-deception, a refusal to accept what it is to be human