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U.S. Climate Litigation in the Age of Trump: Full Term
Get PDFFrom beginning to end, the Trump administration pursued an agenda of climate deregulation. The administration aimed a portfolio of actions at weakening federal climate protections and promoting fossil fuels.1 The executive branch did so by aiming to revise and rescind all major Obama-era agency rules to regulate greenhouse gas emissions, leasing public lands for fossil fuel development, attempting to curtail climate impact consideration in National Environmental Policy Act and Endangered Species Act reviews, and withdrawing energy efficiency measures, among other climate deregulation actions.2 Collectively, this effort served to advance the view that humans are not causing serious climate change and that environmental regulations confer many costs and few benefits.3
Litigants responded and interacted with the administration’s climate deregulation agenda by filing hundreds of lawsuits in jurisdictions across the country. This analysis takes stock of 378 lawsuits during the Trump era where climate change was material to the case and the case implicated issues of federal law and/or federal policy. The vast majority of these suits, 89%, aimed to strengthen climate protection or weaken climate deregulation efforts. The other 11% sought to bolster climate deregulation efforts
The Puzzles and Possibilities of Article V
Get PDFLegal scholars describe Article V of the U.S. Constitution, which sets forth rules for amending the document, as an uncommonly stringent and specific constitutional provision. A unanimous Supreme Court has said that a “mere reading demonstrates” that “Article V is clear in statement and in meaning, contains no ambiguity, and calls for no resort to rules of construction.” Although it is familiar that a small set of amendments, most notably the Reconstruction Amendments, elicited credible challenges to their validity, these episodes are seen as anomalous and unrepresentative. Americans are accustomed to disagreeing over the meaning of the constitutional text, but at least in the text itself we assume we can find some objective common ground.
This paper calls into question each piece of this standard picture of Article V. Neither the language nor the law of Article V supplies a determinate answer to a long list of fundamental puzzles about the amendment process. Legally questionable amendments have not been the exception throughout U.S. history; they have been the norm. After detailing these descriptive claims, the paper explores their doctrinal and theoretical implications. Appreciating the full extent of Article V’s ongoing ambiguity, we suggest, counsels a new approach to judging the validity of contested amendments, undermines some of the premises of originalism and textualism, and helps us to see new possibilities for constitutional change. Because the success or failure of attempted amendments turns out not to be exclusively or even primarily a function of following the rules laid out in the canonical document, all constitutional amending in an important sense takes place outside Article V
William P. Alford: Kindness, Integrity, and Insight
Get PDFIn the summer of 1988, travelling from Dengshikou, in the center of Beijing, to the Xiyuan Hotel, just across from the Beijing Zoo, seemed like travelling to the outer edge of Beijing. I was back in Beijing visiting my host family at the end of the summer, and they were worried about me travelling so far on my own. But I had an invitation to dinner with an American professor, and my host family reluctantly let me travel across Beijing on the electric trolley bus to attend the dinner
Common Ownership: Do Managers Really Compete Less?
Get PDFThis Article addresses an important question in modern antitrust: when large investment funds have holdings across an industry, is competition depressed?
The question of the impact of common ownership on competition has gained much attention as the role of institutional shareholding has grown, with the funds of the three largest management companies holding in aggregate approximately 21% of the shares of a typical S&P 500 firm. It is a source of acute disagreement among scholars and policymakers, with some who believe common ownership does depress competition seeking antitrust law reforms that would significantly constrain how investment funds operate. Neglected in this vigorous debate, however, is a careful analysis of how the persons who in the first instance actually make the decisions that determine an industry’s competitiveness – firm managers – would act differently in the presence of common ownership. In essence, even if the common owners were to pressure firms to compete less, how, if at all, would that change the structure of incentives within which these managers work?
The forces that shape managerial decision-making at publicly traded firms have been the object of intense study by scholars of corporate governance for decades, primarily through use of managerial agency cost analysis. The question of how the dynamics among firms in a concentrated industry affect its level of competition has been subject to similarly intense scrutiny by industrial organization economists. We use learning from both of these fields to conclude that, at current levels, common ownership is unlikely to have a meaningful effect on the managerial structure of incentives in ways that the industrial organization theories suggest would affect competition. This conclusion thus cautions against the proposed antitrust reforms, which would solve a non-problem while adding to the costs of the investment vehicles of choice for tens of millions of ordinary Americans
The Critique and Praxis of Rights
Get PDFThe critique of rights has played a crowning role in critical philosophy. From Hegel to Marx, to Foucault and beyond – Duncan Kennedy, Christoph Menke, the contributors to this Symposium – the critique of rights has always represented an essential and inescapable step in the critique of modern Western society. The reason is plain: conceptions of natural rights, human rights, and civil rights have been central to the founding of modern political thought (from Hobbes, Locke, and Wollstonecraft forward), to the birth and flourishing of legal and political liberalism (in Rawls and Habermas), to the establishment of regimes of civil and political rights, and to the institutionalization of international human rights. Rights are the principal foundation for the discourse and practices of Western liberal democracies. Thus, the critique of rights is an indispensable step in challenging the failures of liberal political theory and liberal legalism. Of this, there is little doubt
The Code of Capital: How the Law Creates Wealth and Inequality – Core Themes
Get PDFIn this brief introduction, I summarize the core themes of my book “The Code of Capital: How the Law Creates Wealth and Inequality”. Capital, I argue, is coded in law – predominantly in a handful of private law institutions. By relying on legal coding techniques, asset holders invoke the right to enforce claims against others, if necessary with the help of the state’s coercive power
General Aspects of Investor-State Dispute Settlement
No full textThis chapter provides a tour d’horizon of the development of the EU’s investment policy and is intended as an introduction for the subsequent chapters. The first part tracks the scope of the EU’s competence regarding foreign direct investments and the investor-State dispute settlement (ISDS) system as it has been developed in particular by the Court of Justice of the EU (CJEU). The second part analyses the tension of investment law and EU law regarding the intra-EU BITs and the Achmea judgment of the CJEU. The question is then discussed whether, and if so, to what extent the internal market provisions of the EU Treaties already provide a sufficient level of investment protection. The third main part focuses on the EU’s recent external investment policy as illustrated by the Comprehensive Economic and Trade Agreement (CETA) between the EU and Canada as well as the EU’s ISDS reform efforts within UNCITRAL Working Group III
The Law of Enhanced Weathering for Carbon Dioxide Removal: Volume 2 – Legal Issues Associated with Materials Sourcing
Get PDFAchieving the Paris Agreement’s goal of limiting the increase in global average temperatures well below 2°C, and ideally to 1.5°C, above pre-industrial levels will likely require the removal of carbon dioxide from the atmosphere. This could be achieved in various ways, including by enhancing natural weathering processes in which carbon dioxide reacts with silicate-based rocks, eventually forming carbonate minerals (e.g., limestone). Research suggests that the amount of carbon dioxide sequestered through this natural process can be increased by grinding silicate-rich minerals (e.g., olivine) or rocks (e.g., dunite) to increase their surface area and then spreading the powder over land or ocean waters (a process known as “enhanced weathering”). Some researchers have also proposed using other silicate-based materials, including mine tailing and similar industrial wastes, in enhanced weathering.
Performing enhanced weathering at scale would require access to large amounts of silicate minerals, rocks, or other materials. This paper examines key U.S. federal and state laws governing the mining and processing of silicate-rich minerals and rocks and the sourcing of silicate-based wastes for use in enhanced weathering. Laws governing the conduct of enhanced weathering projects, both on land and in ocean waters, are analyzed in a separate paper by the author
Strengthening the FDA’s Enforcement of ClinicalTrials.gov Reporting Requirements
No full textOn April 28, 2021, the US Food and Drug Administration (FDA) announced that it “issued its first Notice of Noncompliance to Acceleron Pharma, Inc. (Acceleron) for failing to submit required summary results information to ClinicalTrials.gov.” These results were based on a phase 2 trial that reached its primary completion date in June 2017. The trial examined the safety and efficacy of the candidate drug dalantercept in combination with an FDA-approved drug, axitinib, in patients with advanced renal cell carcinoma. Acceleron not only missed its 2018 deadline for submitting results to ClinicalTrials.gov, but also ignored an initial warning (Pre-Notice of Noncompliance) that the FDA sent the company in July 2020. The FDA’s first Notice of Noncompliance was recognized as an important, if long overdue, step by the agency toward fulfilling its responsibility to enforce the federal law that requires clinical trial sponsors to disclose trial results to the public via ClinicalTrials.gov. But, the Notice of Noncompliance also prompts a key question: what comes next for noncompliant trial sponsors and the FDA
Disadvantaged Unincorporated Communities and the Struggle for Water Justice in California
Get PDFThis article maps a meshwork of formal and informal elements of places called Disadvantaged Unincorporated Communities (DUCs) to understand the role of informality in producing unjust access to safe drinking water in California’s San Joaquin Valley. It examines the spatial, racial, and class-based dimensions of informality. The paper aims to both enrich the literature on informality studies and use the concept of informality to expand research on DUCs and water access. We use socio-spatial analyses of the relationships between informality and water justice to reach the following conclusions: DUCs face severe problems in access to safe drinking water; disparities in access have a spatial dimension; inequities in water access are racialised; the proximity of DUCs to safe drinking water offers good potential for improved water access; and the challenges of informality are targeted through water justice advocacy and public policy