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Constraining the Family Regulation System: The Contribution of the Restatement of the Law, Children and the Law
Get PDFAdvocates, 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
Get PDFA 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?
Get PDFThis 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
Get PDFFrom 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
Get PDFFor 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
Can Section 11 Be Saved?: Tracing a Path to Its Survival
Get PDFLast term, a unanimous Supreme Court held in Slack Techs. v Pirani that purchasers of securities must “trace” their shares to the registration statement that contains the alleged misstatement or omission in order to be able to assert a claim under Section 11 of the Securities Act of 1933. Lawyers and law firms on both sides of the case agreed (with differing emotions) that the decision eclipsed Section 11, which had been the federal securities laws’ strongest litigation remedy for investors. We disagree with this conclusion that Section 11 is doomed, but we recognize the danger. Both in an amicus brief we filed with the Court and now in this article, we show how tracing can be performed and thus Section 11 preserved.
Despite the views of many that it is impossible to trace the chain of title for commingled securities in order to establish standing under Section 11, we argue that this is a misguided, out-of-date assumption because enhanced data-reporting requirements and modern computing power can realistically solve this problem. With an accessible body of transaction records, it is possible to trace the chain of title for securities, using standard accounting methods like first in-first out (FIFO) or last in-first out (LIFO). This allows us to distinguish those investors who purchased only registered IPO shares from those who purchased both registered and unregistered shares. Of course, that a problem can be solved does not mean that both sides will want to solve it. Thus, we examine some of the objections that will likely be raised. Finally, that a technological solution is possible to the problem of tracing that protects both sides suggests that similar solutions should be pursued across a broader context
The Cost of Capital: Lowering the Cost of Capital for Climate and SDG Finance in Emerging Markets and Developing Economies (EMDEs)
Get PDFToday, some of the world\u27s fastest-growing economies face some of the highest borrowing costs – even for clean energy and development projects with strong fundamentals. This is not a function of global capital scarcity. Trillions are available. The problem lies in systemic barriers that prevent capital from flowing to where it’s most urgently needed. The high cost of capital in EMDEs not only undermines critical financing for the energy transition and sustainable development; it also limits the ability for US- and EU-based financial institutions to invest in and finance projects in EMDEs, despite institutional and stakeholder appetite and interest for transition finance.
This paper provides a holistic diagnosis of the structural forces inflating the cost of capital in EMDEs – including sovereign credit ratings, investor risk perceptions, development finance mandates, and regulatory norms – and it outlines ten actionable solutions to unlock long-term, affordable finance for climate and sustainable development – at the speed and scale required by both global goals and national ambitions
Administrative Law and the Pandemic
No full textAmerican administrative law’s relationship to change is, as they say, complicated. On the one hand, continual evolution has been an endemic feature of American administrative law. Doctrines such as Chevron deference to agency statutory interpretations were born, grew, and declined in just the period from the 1980s to today. On the other, the United States (US) Supreme Court regularly rejects such common law development in administrative law as illegitimate and insists that federal judges must adhere to the original terms of the 1946 Administrative Procedure Act (APA) and other statutes, unless the Constitution requires otherwise. And to this day scholars disagree over the merits of each approach.
It is clear, moreover, that American administrative law is in a period of change. Some developments are overtly constitutional, such as increased judicial resistance to removal protections for executive branch officers. Others are more common-law based even if constitutionally inspired – such as new limits on agency claims of authority under the major questions doctrine, greater scrutiny of agency reasoning on claims of pretext, and an overall rollback in agency deference. Yet whether it occurs through common law evolution rather than radical constitutional transformations, the impact of this change is already dramatic, with multiple agencies and administrative initiatives under substantial fire in the courts
Regulation of Sargassum Removal and Sinking in Florida
Get PDFCarbon dioxide removal is increasingly recognized as a necessary component of global climate mitigation efforts. One emerging method involves the deep-sea sinking of plant biomass to sequester carbon. Sargassum, a free-floating brown seaweed, has been identified as a promising candidate for this approach due to its natural buoyancy and decomposition process, which enables it to sink and potentially store carbon in the deep ocean. With sargassum blooms growing dramatically in the Atlantic since 2011 — posing ecological, economic, and public health risks when they wash ashore — there is growing interest in offshore removal and sinking as a climate solution.
This report examines the legal landscape surrounding the collection and sinking of sargassum in and off the coast of Florida. It outlines three primary methods of sargassum collection and sinking — beach-based, offshore manual collection, and autonomous technologies — and assesses their regulatory implications under state and federal law. Key legal frameworks include Florida state permitting regimes, the Marine Protection, Research, and Sanctuaries Act, and various federal environmental statutes. As part of a broader initiative by the Sabin Center, the report aims to support responsible development of marine carbon dioxide removal by clarifying applicable legal requirements
After Notice and Choice: Reinvigorating “Unfairness” to Rein In Data Abuses
Get PDFThe Federal Trade Commission (FTC) has long served as America’s default privacy enforcer. Yet for much of its history, the agency relied on self-regulation through a “notice and choice” framework that left the public vulnerable in an era of rampant data collection and digital surveillance. Businesses overwhelmed users with dense privacy notices while amassing and exploiting vast troves of personal data. The agency’s historical approach, rooted in outdated assumptions about self-correcting markets and an ideologically cramped view of the FTC’s authorities and mandate, helped usher in a digital economy where data abuses became routine.
During the Biden Administration, the FTC charted a new course, rejecting disclosure- based frameworks in favor of substantive protections. Through major enforcement actions, new rulemaking initiatives, and internal capacity-building, the agency advanced significant measures to curb harmful data practices. These efforts included restricting excessive collection of data, establishing bright-line limits on the dissemination of sensitive data, targeting manipulative “dark patterns,” expanding protections for children and teens, and crafting remedies to deter illegal data practices. By addressing upstream drivers of data abuses rather than just responding to downstream harms, the FTC spurred changes in how businesses collect, disseminate, and use Americans’ personal data, while demonstrating that the agency’s existing tools — especially its authority to prohibit “unfair” practices—can be deployed effectively to rein in digital abuses.
This Feature examines the paradigm shift underlying the FTC’s new approach to consumer protection in the digital age. First, it situates this pivot by tracing the history, descriptive assumptions, and ideological tenets that shaped the agency’s prior “notice and choice” framework. Second, it maps out the enforcement principles that animated the FTC’s recent shift, examines the agency’s revival of its “unfairness” authority, and explains how recent agency actions across multiple domains illustrate this new approach. While the change in administration brings uncertainty about the agency’s direction, the FTC’s recent work has laid out a durable blueprint for substantive consumer protection in the digital age. Several of the reforms and programmatic advances have garnered rare bipartisan support at the FTC, in Congress, and in the states, building momentum toward a lasting shift away from disclosure-based regimes