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The Legal Framework for Enhanced Rock Weathering in Minnesota
No full textThis paper focuses on one form of carbon dioxide removal, terrestrial enhanced rock weathering, which involves spreading finely ground alkaline rocks over land. Scientists posit that the alkaline materials will bond with carbon dioxide in the air, sequestering it in mineral form, potentially for tens of thousands of years. Within the U.S., Minnesota is thought to be an ideal location for enhanced rock weathering, as it has pre-existing silicate rock reserves and quarrying infrastructure, and appropriate land. However, before enhanced rock weathering can be deployed at scale, further research is required to verify its effectiveness, co-benefits, and risks.
Currently in the U.S., there are no laws that specifically address enhanced rock weathering, but the practice may be regulated under a number of general laws. This paper builds on prior research on the laws that may apply to enhanced rock weathering by analyzing the application of both federal laws and state laws to projects in Minnesota, as part of a larger Sabin Center project aimed at clarifying state level regulation of carbon dioxide removal activities
The Disaster Management Complex: Law’s Adaptations in Times of Climate Disaster
No full textThe Anthropocene is marked by constant climate-related disasters and defined by the urgent need to foster and implement adaptations to future climate impacts that reduce disaster risk. The intensity, frequency, and severity of extreme weather events continue to rise even as nations and corporations alike miss their emissions targets, all promising a hotter, wetter, and more extreme future. A number of federal agencies, including the Federal Emergency Management Agency (FEMA), have, at times, sought to adapt their own famously fragmented responses to these changing circumstances. However, federal disaster response is conducted against a backdrop of authorizing legislation that is designed primarily to support disaster consequence management, with often murky definitions of disaster types eligible for assistance. Consequently, the relationship between agencies and disaster response and management is subject to pendulum policy swings between presidential administrations. As the politicization and polarization of issues at the intersection of climate and disaster grow, and in the light of recent actions of the Trump Administration, there is a growing call for reform. This Article analyzes how FEMA might integrate climate change into its disaster resilience efforts under existing authority, while exploring a more effective formal legislative mandate to enable FEMA to be a viable source of climate resilience leadership. We propose that FEMA’s mission would be best served by legislation explicitly requiring the agency to integrate climate change responsibilities in all phases of disaster management. In particular, we recommend legislation that (a) clarifies the role of FEMA in relation to slow-onset disasters, such as sea level rise; (b) clarifies the role of FEMA in relation to compounding disasters, disasters that occur while recovery from a previous disaster is still underway; and (c) requires relevant federal, state, and local agencies to integrate climate projections and modelling into hazard and risk assessments
Sabin Center for Climate Change Law Annual Report 2024-2025
Get PDFThis 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
Get PDFThe 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
Get PDFMost-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
Custom and Adjudication in International Law through the Civil Law Tradition in Colombia
Get PDFInternational Law has often been described as a decentralized domain, in the sense that the authority to create the law doesn’t derive from a sole center of power. This is especially true in the context of normative production through Customary International Law. Multiple and disaggregated expressions of state practice and opinio iuris come together in the formation of custom, and a variety of actors, which authority is often contested, including international organizations and tribunals, play a major role in identifying the rules of customary law.
One could also speak of decentralization, or at least of non-systematization, in the domain of international adjudication. Most international judicial bodies and arbitral tribunals decide the disputes brought before them under the formal rule that their decisions only produce effects between the parties to the case. However, in practice, it is not rare to see forms of cross-referencing among international decisions that have rightfully made many legal scholars argue about the existence of a system of jurisprudence both in the case of the International Court of Justice as a prominent example of a permanent international court and arbitral awards.
In this essay, I address these issues, namely, the structures that govern normative production through Customary International Law and the criteria to determine the authority of international judicial decisions and arbitral awards by reference and comparison to the structures and criteria employed for the same purpose in the national level in Civil Law jurisdictions, where, as we will see, legal production is regulated and mostly tied to the centralized authority of the state and one can more properly speak of systems of jurisprudence, with exceptions in the domain of domestic arbitration.
Drawing from my background and experience, I engage in this comparative analysis based on an account of the General Theory of Law in the Civil Law tradition with examples of legal developments and attributes from the Colombian legal system. I conclude by offering some comments on the most salient points of comparison between the domestic and international levels. The Essay is also thought to serve as a legal thought comparative companion for students formed in the Civil Law to engage in the study of two of the most important sources of International law: custom and adjudication
Seaweed Cultivation and Sinking for Carbon Dioxide Removal in Alaska
Get PDFMeeting global climate change goals requires a rapid and dramatic reduction in greenhouse gas emissions. That will not be sufficient by itself, however. It will also be necessary to remove carbon dioxide, and potentially other greenhouse gases, from the atmosphere. One proposed approach involves the cultivation and sinking of seaweed.
Alaska’s coastal waters, rich in nutrients, provide ideal conditions for seaweed cultivation projects. Moreover, Alaska’s coastal waters are more vulnerable to acidification than those in lower latitudes, making aquaculture particularly beneficial in this region. Alaska has made active efforts to streamline the permitting of seaweed cultivation, encouraging research projects in the area. This report analyzes the potentially applicable laws and explains the permitting and other requirements they impose on seaweed projects in Alaska. The report also provides recommendations for improving the permitting process to facilitate CDR projects, while still ensuring they occur in a safe, responsible, and just way
Supreme Court Case Law on Arbitration through a Restatement Lens
No full textIn the United States, arbitration – international and interstate alike – is a federal law subject. However, the U.S. law governing international arbitration is based on a century-old statute, the Federal Arbitration Act (FAA), which has not been meaningfully amended since its enactment nearly 100 years ago, except for the addition of two chapters, implementing the New York and Panama Conventions on the recognition and enforcement of international arbitral awards. As such, it has not kept up with the profound changes that have taken place over this period, much less responded to the countless questions that make their way to the courts.
The U.S. law of international arbitration is thus the accretion of judicial decisions rendered over an exceptionally long period. The great bulk of the cases making their way to the courts concern three subjects: (a) enforcement of agreements to arbitrate, (b) involvement of U.S. courts in the conduct of arbitral proceedings, and (c) post-award actions either for the annulment or the enforcement of an arbitral award. It goes nearly without saying that the burden of developing international arbitration law falls chiefly to the federal district courts and the courts of appeal and that the resulting case law is less than systematic or comprehensive. Moreover, only an exceedingly small fraction of international arbitration cases ever make their way to the U.S. Supreme Court
Wealth Taxes Under the Constitution: An Originalist Analysis
No full textA federal wealth tax is high on the wish list of progressives, but is it constitutional? This Article shows that under the original public meaning of the Constitution, a wealth tax is a “direct tax” that must be apportioned. This means that the percentage of revenue collected in each state must match its percentage of the population. For instance, if two states both have three percent of the population, each must provide three percent of the revenue. This leads to an unappealing outcome: if one state is less wealthy, it needs a higher tax rate to supply its share.
Article I requires apportionment only for a “direct tax,” not for “duties, imposts, and excises.” This Article emphasizes a pattern in taxes that do not have to be apportioned. They are levied on transactions: imposts apply to imports, and excises apply to domestic transactions. These taxes on transactions were exempted because they are hard to apportion. By contrast, a tax that is levied not on transactions — but on taxpayers themselves — is “direct,” and thus is subject to apportionment. In other words, the Framers considered a tax “direct” when it applies without a transaction. Under this definition, a wealth tax is direct because it is imposed directly on taxpayers, regardless of whether they are engaging in a transaction.
In proposing this definition of “direct” taxes, we reject the narrower interpretation, espoused by many judges and commentators over the years, that the only “direct” taxes are head and real estate taxes. At ratifying conventions, John Marshall and other Framers offered a broader definition that included taxes on personal property. Their view reflects the practice of states at the time, which taxed these assets.
To rescue wealth taxes from apportionment, many distinguished commentators have offered a range of theories. For example, some treat apportionment as a mistake, while others dismiss it as mainly a protection for the shameful institution of slavery.
But these commentators do not give the Framers enough credit. The taxing power was too important for them to be sloppy or to focus only on the institution of slavery. The Framers wanted to solve the fundamental problem under the Articles of Confederation (insufficient revenue) without recreating the fundamental problem under imperial rule (taxation without representation). Specifically, they sought to discourage what we call “fiscal raids,” in which states join forces to enact national taxes that mostly burden other states. As Professors Bruce Ackerman and Akhil Amar have shown, this risk could have arisen with an unapportioned tax on enslaved persons because it would have been collected mainly in the South. But we show that the same was true of other region-specific practices, such as the presence of tobacco plantations and undeveloped land in the South, as well as ships, timber, farms, and manufacturing in the North. Apportionment protected all these region-specific assets from federal fiscal raids. In short, apportionment was fundamental to the Framers’ vision of federalism.
Our interpretation is in some tension with the early case of Hylton v. United States, which upheld an unapportioned duty on carriages. A common interpretation of this holding — that the Court spared a type of wealth tax (i.e., on carriages) from apportionment — is inconsistent with our reading of the Direct Tax Clause. Yet there is another way to interpret Hylton’s holding, which aligns with our view: the Justices classified the carriage tax as indirect because they considered it a delayed sales tax, which was paid over a number of years. Admittedly, Hylton also has dicta that is inconsistent with our interpretation: the Justices said that the only direct taxes were head and real estate taxes. Notably, though, they hedged this view in various ways.
The holdings of subsequent cases align with our view, with only one exception: Pollock v. Farmers’ Loan & Trust Co. We agree with Pollock that there are direct taxes other than head and real estate taxes — a correction of the overly narrow dicta in Hylton. But unlike the Pollock Court, we do not classify an income tax on income from property as direct. Rather, we consider it indirect as long as it is a tax on transactions, such as wages, rent, and dividends, which are classic transactions by definition
Black English for Lawyers: A Primer
No full textLawyers do not know as much about Black English as they should, and people’s freedom hangs in the balance. Differences between language varieties in sounds and grammar can change and have changed the outcome of cases: “He at work” and “He be at work” mean two completely different things. To reduce misinterpretation and therefore wrongful outcomes, this Article provides a primer on the sounds, words, grammar, and social context of Black English targeted directly at legal practitioners. It begins by explaining key concepts in linguistics and making the case for why lawyers must foreground accurate description over normative prescription when facing nonstandard language.
The Article then systematically walks through the most important phonological (sounds), lexical (vocabulary), and grammatical features of Black English that are prone to misinterpretation, such as vowel mergers, consonant cluster reduction, habitual “be,” and quotatives like “talkin’ bout.” It explains terminology along the way. Learning requires repetition and exposure, and because the goal here is to teach lawyers rather than to do formal linguistic analysis, the Article provides numerous real-world examples from sources like Twitter, rap lyrics, and linguistics literature to illustrate usage and common points of confusion. The Article has a companion website that also allows learners to listen to authentic speech.
The Article also delves into some controversial social aspects of Black English. The law should recognize that there is a difference between calling someone “a REAL nigga” and “a real NIGGA” and understand which usages of “bitch” are more probative of misogynistic beliefs. The Article also considers the lawyer’s role.
Finally, but most importantly, while this discussion deals with specifics, it also shows a more general point about language: to merely summarily cite a dictionary or other general source (like this Article) for the meaning of an utterance is not to take language seriously. Language is mercurial and diverse, and discovering the plausible range of meanings requires more work than often imagined. But the law must — if it is to be just