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The Past, Present, and Future of Proxy Voting Choice
Full text linkThis article provides an early attempt at understanding what voluntary pass-through voting could mean for the marketplace. I first provide an overview of my argument in my 2018 Journal of Corporation Law article and the events that followed. I then survey passthrough voting initiatives that have taken hold at three asset managers — BlackRock, Vanguard, and State Street. I then conclude with some preliminary observations about how voting choice is likely to affect the proxy voting landscape and outline open questions
Climate Change in the Courts: A 2024 Retrospective
Full text linkDrawing from the jurisdictions covered in the Sabin Center\u27s United States (U.S.) and Global Climate Litigation databases, this report offers insights into key developments, emerging themes, evolving legal strategies, and the pulse of climate litigation in 2024. The report identifies eight major thematic areas of climate litigation, namely (i) climate change in international and regional courts and tribunals, (ii) constitutional and human rights cases, (iii) GHG emissions in EIAs, (iv) factoring climate impacts and obligations into government decision-making, (v) non-compliance with climate commitments, (vi) climate displacement, (vii) greenwashing and climate-washing cases, and (viii) nuisance and other claims against major emitters
Industrial Policy, National Security, and the Perilous Plight of the WTO
No full textThe WTO is going through an unprecedented crisis that has seriously eroded its relevance. The repeated invocations of national security against other members are evidence of a growing distrust. Industrial policy in the name of national security was unheard of when the WTO entered the realm of international relations. The disputes that arise cannot be adequately addressed because the WTO contract cannot be adequately enforced due to the dysfunctional Appellate Body. But even if this were not the case, could enforcement of an outdated contract ever solve the emerging problem? The response in this book is negative—the WTO contract is in dire need of updating. Alas, no one is working in this direction. The WTO is facing what Joseph Nye called a “Kindleberger trap”: the parties that could take the lead to invest in the international order are either unwilling or find it impossible to do so. Trading nations seem to have forgotten that the cost of no WTO is sizeable anyway (if trade growth wanes). And there is a risk that the cost extends beyond international commercial relations.https://scholarship.law.columbia.edu/books/1397/thumbnail.jp
Jurisdiction: Courts Versus Arbitrators
No full textThe problem of arbitral jurisdiction, while easily stated, is not easily resolved: What is the optimal allocation of authority between courts and arbitrators in interpreting an arbitration agreement and determining whether an arbitration is valid, applicable, and enforceable? This chapter assesses this allocation of authority in New York, a matter largely governed, in view of its subject, by federal law. It examines the different scenarios in which the question arises, attempting to describe, among other things, courts’ and arbitrators’ likely choice of applicable law and the degree of independent judgment or deference that courts and arbitrators exercise in each scenario.
Arbitration agreements are a type of forum selection clause that “specify an arbitral forum for resolution of differences” between the parties. While forum selection clauses may be of a “derogation” nature (i.e., may designate an exclusive forum for the resolution of covered disputes) or of a “prorogation” nature may merely identify an available possible and leave all other available for a intact), arbitration clauses are ordinarily deemed to have an exclusive character
U.S. Climate Litigation During the Biden Years
No full textUsing cases collected in the Sabin Center for Climate Change Law’s Climate Litigation Database, this report analyzes the 630 climate change lawsuits filed in United States courts while President Joseph R. Biden was in office. During the Biden administration, the federal government reversed course on the first Trump administration’s climate deregulation and embarked on a “whole-of-government approach to combatting the climate crisis.” Many states and municipalities pursued their own efforts to mitigate and prepare for climate change, while other states undertook climate deregulatory efforts. During the four years of the Biden administration, many areas of the U.S. experienced disasters linked to and intensified by climate change, including hurricanes, extreme heat, and wildfires. This report assesses characteristics of the climate cases filed in federal and state courts during this time period, with these policies and climate events as their backdrop and subject matter. The report’s analysis does not assess the outcomes of these cases, many of which remain pending. Instead the report distills elements of these cases: what goals the litigation aimed to achieve, who the parties were, and the underlying subject matter and substantive law. The analysis — which builds on the Sabin Center’s reports on climate litigation during the first Trump administration — provides a quantitative overview of these characteristics of climate litigation. The report concludes with a discussion of how the trends in U.S. climate litigation may be evolving during the second Trump administration as the U.S. federal government once again reverses course on its climate agenda
Climate Change Litigation in New York
Full text linkNumerous lawsuits have been brought in the federal and state courts in New York concerning climate change. Some were under two important state statutes on the subject – the Climate Leadership and Community Protection Act of 2019 (CLCPA)and New York Climate Superfund Act of 2024. Others are brought under various common law, consumer protection, securities, and other theories. This column describes the most important of these cases
For Whose Benefit Is the Freedom of Speech?
Full text linkIn United States v. Alvarez, the US Supreme Court ruled that an official of a water district who introduced himself to his constituents by falsely stating in a public meeting that he had earned the Congressional Medal of Honor had a First Amendment right to make that demonstrably untrue claim. Audience members misled by the statement might well be considered to have a First Amendment interest in not being directly and knowingly lied to in that way. Other members of the community might be thought to have a First Amendment interest in public officials such as Xavier Alvarez telling the truth about their credentials and experiences. Nevertheless, as both the plurality and the concurring justices who together formed the majority in Alvarez viewed the case, it was the liar’s interest in saying what he wished that carried the day. Why is that? Crucial to answering this question is whether ‘the freedom of speech’ that the First Amendment tolerates ‘no law abridging’ is understood to be primarily speaker-centered, audience-centered, or society-centered
Sabin Center for Climate Change Law Annual Report 2024-2025
Full text linkThis 2024-2025 annual report highlights the Sabin Center’s breadth and impact across our program areas, including climate litigation, carbon management and negative emissions technologies, US climate policy, energy transition, climate law and finance
Out from the Shadows: Party Documents in Chinese Courts
Full text linkThe Communist Party’s influence over the Chinese legal system is generally assumed to be behind the scenes, largely invisible to outside observers. Since General Secretary Xi Jinping came to power in 2012, there has been renewed attention within and outside of China to the relationship between the Communist Party and the legal system. Much of this recent writing has emphasized the degree to which Xi’s efforts to affirm Party superiority and break down barriers between the Party and the State reflects a profound shift in governance and a reversal of a decades-long effort to distinguish between Party roles and those of State actors, including the courts.
In this Article, we add to this literature on the relationship between the law and the Communist Party in Xi’s China by examining two debates within China about the definition and form of law. We begin with actual court practice, examining whether and when Chinese courts cite Party-issued documents in their decisions. For much of the reform era, the dominant narrative among legal scholars was that courts should not cite Party regulations or documents in their decisions. Party influence should remain in the shadows. Our analysis of actual court practice between 2014 and 2018 tells a different story: courts rely on Party documents as a legal basis for their decisions in a wide range of cases. We identify and analyze approximately 5,000 cases from a database of 42 million court judgments. Chinese courts’ reliance on Party documents is striking given the near-consensus within legal academia in China that Party documents should not be the legal basis of a court’s holding. The cases suggest that courts turn to Party documents for a mixture of reasons: resolution of historical disputes, gap-filling and necessity, shifting of responsibility for decisions to Party entities, and alignment with Party policies. Yet much of the Party regulation we observe through the lens of court practice is routine or mundane. Despite the recent focus on shifts in Party oversight of courts, our findings suggest that courts have been treating Party documents as law all along.
We then turn to a recent theoretical debate among legal scholars in China about the legal status of Party documents in the Chinese legal system. Over the past decade, a group of prominent scholars has begun to argue both for increased study of Party regulations and for recognizing Party documents as law. This line of argument marks a break from the longstanding mainstream view that Party documents are not law. This new academic conversation suggests that the idea of law in China is being destabilized. Yet the debate has also inspired pushback from those who believe that maintaining separation between the Party’s internal rules and the legal system is vital to the rule of law.
The debates we track in this Article provide two windows into a foundational question: What is the definition and role of law in contemporary China? Examining court decisions demonstrates the need for scholars to focus in greater depth on the actual norms that Chinese courts apply. Excessive attention to whether courts follow the law obscures the question of what counts as law, as well as actual practice. Theoretical debates provide a window into a different but related question: What are the aspirations for law in China? The fact that the definition of law remains a contested fault line reveals unresolved tensions over the role of law in China’s authoritarian system, despite nearly five decades of legal construction. Our findings regarding both actual practice and academic debates suggest a strong likelihood that Party documents will play a growing role in court adjudication in the future, as well as likely increased Party regulation of routine or mundane matters. How these debates play out, and their effect on actual practice, will inform understandings of the role of law in China and of authoritarian law and governance more generally
Most-Favored-Nation\u27s False Promises
Full text linkMost-favoured-nation (MFN) protection seems decidedly straightforward both in meaning and operation, certainly as compared to other investment protections, such as fair and equitable treatment, which are plagued with indeterminacy. But the clarity of meaning and ease of application of MFN clauses are largely illusory. An examination of arbitral case law reveals seriously underestimated uncertainties surrounding the doctrine’s scope and workings. But the problems with MFN run far deeper. MFN may have the virtue of enhancing the level of protection of foreign investments. But States do not only extend benefits; they also withhold them. MFN disrespects the balance that States sought to achieve in the agreements they conclude. Particularly deceptive is MFN’s reputed capacity to reduce discrimination among foreign investors. MFN does not meaningfully reduce discrimination; indeed it exacerbates the problem. Especially illusory is the notion that MFN necessarily conduces to a multilateralization of investment protection. MFN even falls short in light of investment treaties’ core purposes. There may or not be convincing evidence that the availability of investment arbitration significantly induces foreign investment. But it cannot seriously be maintained that the level of foreign investment in a given State turns on MFN’s presence in, or absence from, an investment treaty