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Cities Climate Law: A Legal Framework for Local Action in the U.S.
Get PDFIn the last several years, cities around the world have taken on a leading role in advancing policy to reduce greenhouse gas emissions. In the United States, dozens of cities have set goals targeting ambitious greenhouse gas emission reductions by a date certain (80% or net zero by 2050 are common formulations), and many more have pledged to achieve a 100% renewable or carbon-free energy supply.
Many U.S. cities are still determining the policies that would best achieve their climate commitments. In addition to political, financial, and technical considerations, these cities must consider how to structure their policies to comport with federal and state law. Given variable conditions and contexts, cities can\u27t simply copy and paste climate policies that have been successful elsewhere. They must consider the contours of their own legally delegated authority.
Cities Climate Law: A Legal Framework for Local Action in the U.S. explores and explicates legal issues that might inhibit or enable policy adoption and implementation across a range of municipal carbon mitigation policy areas: Equity, Buildings, Transportation, Energy, and Waste. The report demystifies these sometimes knotty legal questions so that law- and policy-makers can craft informed, creative carbon mitigation policies that address local political and policy concerns while staying within legal bounds, reducing the risk that action will be undone by the courts.
U.S. cities are central to national efforts to reduce greenhouse gas emissions and help stave off the most dire impacts of climate change. And our cities have long pioneered pathbreaking carbon mitigation law and policy, and will continue to do so. While federal and state law pose distinctive legal challenges, they also provide unique opportunities for enterprising cities to continue to lead the way in reducing greenhouse gas emissions
\u3cem\u3eCaremark\u3c/em\u3e and ESG, Perfect Together: A Practical Approach to Implementing an Integrated, Efficient, and Effective \u3cem\u3eCaremark\u3c/em\u3e and EESG Strategy
Get PDFWith increased calls from investors, legislators, and academics for corporations to consider employee, environmental, social, and governance factors (“EESG”) when making decisions, boards and managers are struggling to situate EESG within their existing reporting and organizational structures. Building on an emerging literature connecting EESG with corporate compliance, this Essay argues that EESG is best understood as an extension of the board’s duty to implement and monitor a compliance program under Caremark. If a company decides to do more than the legal minimum, it will simultaneously satisfy legitimate demands for strong EESG programs and promote compliance with the law. Building on that insight, we explain how boards can marry existing corporate compliance programs with budding EESG programs. By integrating compliance and EESG, corporations can meet growing societal demands in an effective and efficient manner that capitalizes on existing structures. Lastly, we address how EESG and corporate compliance responsibilities should be allocated at the board and senior management level. Instead of separating compliance and EESG oversight, this Essay suggests that boards embrace a functional approach, delegating similar compliance and EESG oversight to the same committee and managers. By situating EESG within the board’s existing fiduciary duties, this Essay provides academics, legislators, investors, and managers with a novel framework to conceptualize EESG while also offering a path forward for boards struggling to place the current EESG movement within their existing corporate structure
The Southern Hospitals Report
Get PDFWhen research for this report was first initiated, it was intended to answer a narrow question: is abortion care restricted at historically Protestant hospitals in the U.S. South? Strict limits on access to abortion at Catholic hospitals — and the ways in which this can obstruct and delay even emergency medical care — are already well documented in legal and medical literature and news media. In contrast, restrictions at Protestant hospitals have not been extensively studied and are not well understood. Our research sought to fill this gap in knowledge. We focused on the U.S. South because Catholic hospitals are less concentrated in the South than in other regions (especially the Midwest and Pacific Northwest), leaving Protestant hospitals to play a potentially larger role in the delivery of medical care
FAQ on the Current Status of the Equal Rights Amendment to the U.S. Constitution
Get PDFSeveral measures have been introduced into the U.S. Congress this session that relate to the Equal Rights Amendment (ERA). One is a resolution that would lift the deadline for ratification of the ERA that was passed by Congress in 1972, and the other is a new ERA that would begin a new process of amending the Constitution to add explicit protections for sex equality. This FAQ is designed to explain what each of these measures would do and the legal complexities that surround them
Elected-Official-Affiliated Nonprofits: Closing the Public Integrity Gap
Get PDFRecent years have witnessed the growing use by elected officials, particularly state and local chief executives, of affiliated nonprofit organizations to advance their policy goals. Some of these organizations engage in public advocacy to advance a governor’s or mayor’s legislative program. Others operate more like conventional charities, raising philanthropic support for a range of governmental social welfare programs. Elected officials fundraise for these organizations, which are often staffed by close associates of those elected officials, and the organizations’ public communications frequently feature prominently the name or likeness of their elected-official sponsor. As these organizations do not engage in electioneering, they operate outside election law, and as they do not personally enrich their sponsors, they are usually not covered by ethics restrictions. Yet, due to their close connection to elected officials, their fundraising raises the same concerns of official favoritism or the appearance of such favoritism to donors that lie at the heart of public integrity law.
This article examines the rise of elected official affiliated nonprofits, the public integrity gap revealed by their activities. It presents proposals that would close that gap by requiring transparency and restricting pay to play donations, and considers the constitutional questions that likely would be raised by these proposals, The proliferation of elected-official-affiliated groups demonstrates that the connections between the elected officials and their supportive committees are real, as are the possibilities for undue influence and its appearance. It is past time to close the public integrity gap. Targeted disclosure requirements and limitations on pay to play donors are constitutionally appropriate mechanisms for doing so
Comment on \u3cem\u3eAndy Warhol Found. for the Visual Arts, Inc. v. Goldsmith\u3c/em\u3e, 992 F.3d 99 (2d Cir. 2021)
Get PDFThe Second Circuit’s decision in Andy Warhol Foundation v. Goldsmith retreats both from its prior caselaw’s generous characterization of artistic reuse as “transformative,” and from the outcome-determinacy of a finding of “transformativeness.” The decision suggests both that courts may be applying a more critical understanding of what “transforms” copied content, and that courts may be reforming “transformative use” to reinvigorate the other statutory factors, particularly the inquiry into the impact of the use on the potential markets for or value of the copied work. The court also provided an important explanation of copyrightable authorship in photographs.
In addition to analyzing the Second Circuit’s decision in Andy Warhol Foundation v. Goldsmith, this Comment also addresses the relevance to transformative use of the Supreme Court’s ruling in Google v. Oracle, and concludes that the highly software-specific context of that case cabins its fair use analysis to functional code far from the “core of copyright.
Innovation in a Time of Uncertainty: Lawyer-Leadership at Davis Polk and Wardwell LLP
Get PDFIn Fall 2009, Gabe Rosenberg was a first-year associate at Davis Polk and Wardwell LLP. Equipped with a master’s degree in applied mathematics and a newly-minted law degree, Rosenberg joined the Financial Institutions Group at a time when the firm and its clients were working hard to make sense of a rapidly changing regulatory environment following the 2008 financial crisis. It was this evolving regulatory complexity the firm and its clients faced that presented an opportunity for Gabe and one of the senior partners with which he worked, Meg Tahyar, to exercise lawyer-leadership
Plurilateral Cooperation as an Alternative to Trade Agreements: Innovating One Domain at a Time
Get PDFAt the end of 2017 different groups of WTO members decided to launch talks on four subjects, setting aside the WTO consensus working practice. This paper argues that these ‘joint statement initiatives’ (JSIs) should seek to establish open plurilateral agreements (OPAs) even in instances where the outcome can be incorporated into existing schedules of commitments of participating WTO members. Designing agreements as OPAs provides an institutional framework for collaboration among the responsible national authorities, transparency, mutual review and learning, as well as alternatives to default WTO dispute settlement procedures which may not be appropriate for supporting cooperation on the matters addressed by the JSIs. In parallel, WTO members should establish enforceable multilateral principles to ensure OPAs are compatible with an open global trade regime
Judges and the Deregulation of the Lawyer\u27s Monopoly
Get PDFIn a revolutionary moment for the legal profession, the deregulation of legal services is taking hold in many parts of the country. Utah and Arizona, for instance, are experimenting with new regulations that permit nonlawyer advocates to play an active role in assisting citizens who may not otherwise have access to legal services. In addition, amendments to the Rules of Professional Conduct in both states, as well as those being contemplated in California, now allow nonlawyers to have a partnership stake in law firms, which may dramatically change the way capital for the delivery of legal services is raised as well as how technology and artificial intelligence may be leveraged in adjudicating disputes.
While overt regulatory changes remain enormously controversial, scholars and policymakers have missed a critical part of the landscape: the role state court judges are playing in the de facto deregulation of the legal profession at the civil trial level. Across the nation, the rise of pro se parties has forced judges to rethink their roles. In the new reality of pro se courts, judges in debt collection, eviction, and family matters – which, together, occupy roughly ninety percent of all civil court dockets – must make critical decisions about how to balance the duty of impartiality with the need to achieve a measure of justice and ensure fair adjudication of disputes.
Drawing on original data, including interviews and hundreds of hours of court observations, from a multi-site investigation of the civil justice landscape, this Article shows how some judges – mired in the pro se crisis – are relying on a shadow network of nonlawyer professionals to substitute for the role counsel has traditionally played. Focusing on domestic violence courts as the primary illustration, we find that even in jurisdictions not currently contemplating regulatory reform, judges are relying on organized nonlawyer actors to prepare pleadings, offer substantive and procedural information to litigants, and provide counseling services. These nonlawyer advocates play a significant role in shaping the facts and arguments presented to the judge which we believe, in turn, influences processes and outcomes.
In addition to demonstrating this novel phenomenon, the Article raises three important implications of trial judges’ role in diluting the lawyer’s monopoly. First, the collaboration between judges and nonlawyer advocates is hidden behind the scenes. The quiet partnership assists judges in maintaining the perception of impartiality in the courtroom, which is critical to public trust in the courts, while enabling pro se parties to properly raise claims and seek remedies from the justice system. Second, an opportunity to develop norms around the role of nonlawyers is being squandered. Trial court judges, who are typically excluded from formal regulatory processes, could be leaders in deregulating the lawyer’s monopoly in ways that ensure the integrity of the legal profession, fill a justice gap for pro se litigants, and help to open up pathways for public and formal recognition of a new class of legal professionals. And finally, due process demands that the role of nonlawyers be made public. Our research reveals that only one party to the dispute – the petitioner for a protective order – receives nonlawyer assistance, while the respondent typically receives little to no assistance at all. Domestic violence advocates have been effective in organizing wrap-around services for survivors, including help with preparing court papers, but those accused of domestic violence and subject to protective order proceedings benefit from no such organizing effort. Bringing nonlawyer assistance out of the shadows would make plain that more needs to be done to level the playing field for both parties
The Uncertain Future of Administrative Law
Get PDFA volatile series of presidential transitions has only intensified the century-long conflict between progressive defenders and conservative critics of the administrative state. Yet neither side has adequately confronted the fact that the growth of uncertainty and the corresponding spread of guidance – a kind of provisional “rule” that invites its own revision – mark a break in the development of the administrative state as significant as the rise of notice-and-comment rulemaking in the 1960s and 1970s. Whereas rulemaking corrected social shortsightedness by enlisting science in the service of lawful administration, guidance acknowledges that both science and law are in need of continual correction. Administrative law has the resources to ensure that the provisionality of guidance does not lead to the abuses that conservatives fear. But to deploy those resources – and to carry through the reforms of administrative organization that are their natural complement – progressives must rethink their commitments to judicial deference to administrative authority and administrative deference to presidential authority, commitments on which the progressive defense of the administrative state currently depends