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North Africa Can Reduce Europe\u27s Dependence on Russian Gas by Transporting Wasted Gas Through Existing Infrastructure
Get PDFRussia\u27s war against Ukraine is a wake-up call to reduce Europe\u27s dependence on Russian oil, gas, and coal. It is also a defining moment to accelerate the energy transition to a net-zero society with more supply diversity, energy security, and resilience. Europe needs to massively invest in a cleaner energy system. In the short term, this crisis should accelerate our focus on reducing waste gas from flaring, venting, and leaking – some 260 billion cubic meters (BCM) globally or 1.7x that of the European Union\u27s gas imports from Russia. By capturing gas from flaring, venting, and leaking in North Africa, Europe could, within 12-24 months, start to substitute up to 15% of Russian gas via highly underutilized pipelines and liquified natural gas (LNG) terminals in the region. By capturing this wasted gas, Europe and North African nations can significantly reduce CO2-equivalent emissions without delaying the energy transition and greatly benefit from new revenue streams to reinvest in clean energy sources. We have been talking for decades: it\u27s now time to act
Historical Injustice, Agency, and Resentment
Get PDFIn societies marked by deep and enduring structural inequality – often along lines of caste, race, gender, or other forms of identity – how is responsibility for such injustice assigned? How is the agency necessary to overcome historical injustice imagined? These lectures will use Bhimrao Ramji Ambedkar’s writings as a starting point to explore the moral psychology of responding to historical injustice
An Attack on Local Authority
Get PDFIn the 2021 legislative sessions, Republican state lawmakers introduced a glut of preemption bills aimed at giving states more power over the administration of local government operations, signifying a new, deeper level of state interference into the inner workings of cities and counties. . . . Entering the 2021 legislative sessions, Republican state lawmakers used their power to respond to the events of 2020 – the pandemic, the racial justice movement, the presidential election, and what they perceived to be local government overreach (Brownstein 2021) – by introducing a surge of preemption bills aimed at appropriating the machinery of local government operations. As a result, some states now dictate how local elections are run, determine the process for issuing local public health orders, decree how much local governments can cut or shift funds in their budgets for policing, and threaten to give state actors the authority to intervene in local criminal cases. Combined, these and other laws constitute an unprecedented state intrusion into the day-to-day management of cities and counties
Legal Provisions on Shared Use of Mining Infrastructure: Rail, Port, and Power
Get PDFIn 2011, CCSI began to research how mining infrastructure can be leveraged for sustainable development and in 2013 created an economic, legal, and operational framework to generate shared-use benefits from rail, ports, power, water, and internet and telecommunications. CCSI has published many works on shared use in the mining sector. Those works, along with other mining-related publications and mining concessions available online, ground the analytical framework of this paper, provide insight on the economic drivers of the mining sector, and detail how legal provisions – including laws, regulations, and contractual terms – can forefront shared use.
This paper is part of CCSI’s larger work on extractive industries which endeavors to make mining more beneficial and sustainable for people, private enterprise, and the natural environment. It sheds light on the legal, regulatory, and contractual provisions that underpin shared-use mining infrastructure and provides non-exhaustive guidance on how governments might strengthen them to advance shared use of railroads, ports, and power.
Section 2 provides background information on the basic legal frameworks that underpin shared-use mining infrastructure. Sections 3 and 4 focus on the economic conditions and legal provisions that shape the shared use of railroads, ports, and power. Section 5 concludes the paper by indicating areas for further research
Democracy and Disenchantment
Get PDFDuring the latter half of the Trump presidency, as it became increasingly clear that the Supreme Court would remain solidly conservative for the foreseeable future, Samuel Moyn and Ryan Doerfler declared war. In popular and scholarly venues, they have steadily built a case for curtailing the power of the nation’s highest court. Their arguments have been both pragmatic and principled. They have underlined, for instance, the risks the Roberts Court poses to progressive goals such as addressing climate change1 and granting student debt relief. More broadly, they object to a “supra-democratic court exercising its current, expansive legislative veto.” For Doerfler and Moyn, the choice is between juristocracy and democracy and they know where they stand: reforming the Supreme Court, and in particular disempowering it, is necessary for the future of American democracy.
The Ghost of John Hart Ely is Doerfler and Moyn’s latest salvo against American judicial review. This time, however, their strategy is different. Instead of directly critiquing the Supreme Court’s power, they target the ideology that undergirds it. In particular, they identify the work of John Hart Ely as responsible for animating continued liberal belief that a powerful Supreme Court is both necessary and desirable for democracy. Ely famously justified judicial review on two grounds: it was necessary for protecting political minorities against systemic bias and ensuring a competitive political process by “clearing the channels of political change.” While scholars have closely scrutinized Ely’s proceduralism in the decades that followed Democracy and Distrust’s publication, Moyn and Doerfler contend that his real influence — indeed his “ghost” — lives on through the “two empirical conjectures he makes that mainstream liberals share.” Even if Ely’s theory has fallen out of fashion, liberal confidence in the Court has endured because contemporary thinkers continue to hold on to Ely’s assumptions.
In this Response, I examine Doerfler and Moyn’s critique of Ely’s second conjecture: that judges, by virtue of their disinterestedness, are better positioned to protect democracy than the political branches. I focus on this part of their argument for two reasons. First, skepticism about courts’ capacity and willingness to protect minorities is longstanding. Their critique here is less novel than their diagnosis of the underlying theoretical problem, namely Ely’s first conjecture. Second, if Doerfler and Moyn are right about Ely’s second premise being wrong — and I think they are — then there are important consequences for the law of democracy. A core operating assumption for election law is the idea that judges are the one branch citizens can rely on to protect the political process from corrosive self-dealing. Once that assumption is gone, the institutional priorities and aspirations of the field have to correspondingly change. This Response both explores nature and aftermath of Doerfler and Moyn’s exorcism. Only by taking stock how they have vanquished Ely’s ghost can we decide where those committed to a fair and equal political process should go next in a disenchanted world
Judicial Minimalism in Lower Courts
Get PDFDebate about the virtues and vices of “judicial minimalism” is evergreen. But as is often the case in public law, that debate so far has centered on the Supreme Court. Minimalism arose and has been defended as a theory about how Justices should judge. This Article considers judicial minimalism as an approach for lower courts, which have become conspicuous and powerful actors on the public law scene. It begins by offering a framework that disentangles the three basic meanings of the term “judicial minimalism”: decisional minimalism, which counsels judges to decide cases on narrow and shallow grounds; prudential minimalism, which counsels judges to avail themselves of various techniques of not deciding cases (the so-called “passive virtues”) on grounds of prudence; and Thayerian minimalism, which counsels judges to refrain from invalidating the actions of the political branches except in cases of clear illegality. This Article then argues that several institutional features of lower courts make judicial minimalism in most of its forms a particularly compelling ideal for lower court judges. Further, attending to the differences between the lower courts and the Supreme Court reveals that minimalism is in tension with the institutional logic of the Supreme Court. In all, this Article aims both to clarify the concept of minimalism and to place it in its proper institutional home. After making the case for lower court minimalism, this Article proposes some strategies for realizing it: first, developing a concept of judicial role fidelity that is tailored to the institutional realities of lower courts, and second, reforming case-assignment rules, nationwide injunctions, and the size of the federal bench to help channel lower courts toward more minimalist outcomes
Mindful Debiasing: Meditation as a Tool to Address Disability Discrimination
Get PDFAntidiscrimination law is at a critical juncture. The law prohibits formal and explicit systems of exclusion, but much bias nonetheless persists. New tools are needed. This Article argues that mindfulness meditation may be a powerful strategy in the battle against disability discrimination. This Article sets out eight reasons that disability bias is particularly intractable. The Article then draws on empirical, philosophical, and scholarly sources to identify mechanisms through which mindfulness meditation can address these dynamics. The Article concludes by presenting concrete doctrinal implications of bringing mindfulness to bear on disability discrimination. This Article thus contributes to the established fields of antidiscrimination law in general and disability law in particular, as well as the emerging domain of mindfulness and law
A Time for Triage
Get PDFThe world is desperately behind in the energy transformation needed to avoid the worst impacts of climate change. Catching up requires a massive buildout of wind and solar power and associated infrastructure, but in the United States many impediments stand in the way. Among them, ironically enough, are environmental laws. Here I argue that we must accept difficult tradeoffs, sacrificing some of what we consider precious in order to avoid far worse impacts
Toward a Fair and Sustainable Corporate Governance System: Reflections on Leo Strine, Jr.\u27s Writing on Institutional Investors
Get PDFIt is a privilege to contribute to this Festschrift for my friend, mentor, and co-author, Leo Strine, Jr. It is also a pleasure to revisit his vast body of work and to re-experience the breadth and depth of his scholarship, as well as reflect on his unparalleled influence on the development of corporate law that he brought about while presiding over its most influential courts for twenty-one years.
In thinking about this essay, I recalled a conversation that I had with “CJS” when I was serving as his law clerk. In this conversation, he decried (with James Taylor blasting in the background) how institutional investors discharged their fiduciary duties, directing me to a study that revealed, disappointingly, that so-called “green” mutual funds voted no differently than their “brown” counterparts. The conversation was a revelation to me; it launched me on a path of considering how institutional investors wield their substantial power and what agency problems might stand in the way.
As this essay will demonstrate, Chief Justice Strine was one of the first to highlight these problems (coining the phrase “the separation of ownership from ownership”) and propose reforms. In his final year of judicial service, he drafted legislation that would crystalize many of these ideas, garnering support from many legislators. Since that time, he has continued to push institutional intermediaries to take a broad view of their duties, observing that their beneficiaries may also be workers, and are always human beings with interests in clean air and water. In his scholarship and advocacy, Chief Justice Strine has been extremely influential, driving reforms of governance practices at major institutions and influencing government bodies at the state and federal level to focus on these issues.
In this essay, I highlight some of Chief Justice Strine’s many contributions to our understanding of institutional investors, their incentives, and their duties. In so doing, I focus on his scholarship rather than his jurisprudence, although these issues have also come up in the latter. I also discuss some of the policy proposals that Chief Justice Strine has advanced that would change the incentive environment for institutional investors, and also address their outsized influence relative to other corporate stakeholders. In so doing, I hope to not only reflect on Chief Justice Strine’s extensive contributions to this area of law, but also influence his many remaining years of scholarship and advocacy. And in writing this essay, I will highlight themes that are reflective of Chief Justice Strine’s approach: in particular, his “clear-eyed” view that takes as his starting point what the law is, rather than what it should be; his willingness to modernize and humanize stale legal frameworks; and his desire to make the world a better place for ordinary people