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Will Systematic Stewardship Save the Planet?
No full textThe largest institutional investors have solidified their status as “universal owners,” holding almost eighty percent of the U.S. stock market. The growing influence of these investors over the companies they invest in has sparked optimism among scholars and activists that asset managers will use their clout to steer firms towards Environmental, Social, and Governance (ESG) objectives. But such optimism may be misplaced. Focusing on carbon emission reduction, we argue that universal owners lack the necessary incentives and competence to pressure corporations to lower emissions.
Universal owners market ESG investments with conflicting promises of “doing well while doing good.” The untenable promise that ESG investments will “do well,” or match the returns of non-ESG funds, prevents universal owners from effectively “doing good,” or meaningfully compelling corporations to reduce emissions. Furthermore, although climate change is a systematic risk, addressing it requires firm-specific engagement. Universal owners, however, lack the incentive to lead firm-specific campaigns. We further demonstrate that no other actors will emerge to provide the required firm-specific engagement.
We argue that universal owners’ distorted incentives should concern even those who believe that climate stewardship is necessary, albeit imperfect, in light of government inaction. We explain why extensive disclosure requirement for ESG funds would not eliminate the distortions caused by their contradictory commitments and consider implications for the ESG movement. While universal owners are ill-equipped to direct corporations toward efficient climate solutions, these investors may nudge environmental legislation forward by ensuring that their portfolio companies’ lobbying efforts are aligned with their pledges to protect the environment
Legal Models for Public-Private City Greening Partnerships
No full textCities are significantly hotter than their surrounding areas. That difference, known as the “urban heat island” effect, is driven in significant part by the dark-colored buildings, sidewalks, roadways, and similar surfaces that dominate urban spaces, absorbing solar energy and later radiating it outward as thermal energy that heats the nearby air. This Comment suggests and describes one avenue through which cities and local community-based organizations (CBOs) could tackle extreme heat: partnering with one another to transform paved surfaces into green or reflective ones. Partnerships of this kind could combine the resources and desire to create green spaces that nongovernmental groups offer with cities’ large portfolios of property
Trump’s Multi-Pronged Attack on Renewable Energy
No full textFederal policy on renewable energy took a 180-degree turn on the day of Donald Trump’s second inauguration. The Biden administration had rightly seen a massive expansion of clean energy, especially wind and solar and the associated storage and transmission, as key to moving away from fossil fuels and fighting climate change. But Mr. Trump denies that climate change is a serious problem and works to increase both the supply of and the demand for fossil fuels.
This article discusses the range of actions involved in the Trump administration’s attack on renewable energy
The Law of Capitalism and How to Transform It
No full textA fascinating study of the legal underpinnings of capitalism, reasons why the system must be transformed, and actions we can take.
Even though capitalism has been conventionally described as an economic system, it is actually a deeply entrenched legal regime. Law provides the material for coding simple objects, promises, and ideas as capital assets. It also provides the means for avoiding the legal constraints that societies have frequently imposed on capitalism. Often lauded for creating levels of wealth unprecedented in human history, capitalism is also largely responsible for the two greatest problems now confronting humanity: the erosion of social and political cohesion, which undermines democratic self-governance, and the threats that emanate from climate change.
By exploring the ways that Western legal systems empower individuals to advance their interests against society, Katharina Pistor reveals how capitalism is an unsustainable system designed to foster inequity. She offers ideas for rethinking how the transformation of the law and the economy can help us create a more just system — before it is too late.https://scholarship.law.columbia.edu/books/1402/thumbnail.jp
The ICJ’s Advisory Opinion on Climate Change
No full textThis open-access edited volume offers the first comprehensive analysis of the International Court of Justice’s 2025 Advisory Opinion on the obligations of States in respect of climate change, one of the most consequential developments in international climate law since the adoption of the Paris Agreement. Bringing together leading scholars and practitioners from across public international law, human rights law, environmental law, and global governance, the book examines how the Court reframed climate change as a matter of binding legal obligation rather than political discretion.
The contributions explore the Opinion’s articulation of state duties under treaties, customary international law, and general principles, including due diligence, the prevention of significant environmental harm, international cooperation, and the protection of human rights. Particular attention is given to the Court’s treatment of reparations and responsibility, its engagement with the law of the sea, displacement and statehood under conditions of sea-level rise, and the implications for energy governance and domestic climate litigation. Several chapters also situate the Opinion within an emerging judicial dialogue alongside the advisory opinions of the International Tribunal for the Law of the Sea and the Inter-American Court of Human Rights.
Beyond doctrinal clarification, the volume critically engages with what the Court did not say. A dedicated section interrogates silences concerning differentiation of responsibilities, historical and colonial responsibility, military emissions, and regional perspectives, treating judicial restraint as an object of analysis in its own right. Taken together, the chapters show how the Advisory Opinion consolidates an integrated legal framework for climate governance while leaving key questions open for future litigation and interpretation.
By combining close legal analysis with comparative and critical perspectives, this book positions the ICJ’s Advisory Opinion as a legal and institutional watershed whose influence will unfold across international adjudication, national courts, and climate policy debates in the years ahead
Can Section 11 Be Saved?: Tracing a Path to Its Survival
Full text linkLast 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)
Full text linkToday, 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
Full text linkCarbon 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
Full text linkThe 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