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The Coming Shift in Shareholder Activism: From Firm-Specific to Systematic Risk Proxy Campaigns (and How to Enable Them)
Get PDFThis article distinguishes two types of shareholder activism: (1) firm-specific activism, which has a long history and focuses on changes at a specific target company, and (2) systematic risk activism, which seeks to reduce the systematic risk in a portfolio and thereby benefit diversified investors. Typically, such a systematic risk campaign may force a portfolio company to internalize negative externalities to benefit the other companies in the portfolio (such as by reducing carbon emissions or undertaking climate risk reforms). But, systematic risk activism faces an inherent difficulty: the party that leads this campaign and invests in the target company may incur a significant loss when the target company’s stock price falls. This will be particularly difficult for activist hedge funds to accept, because they have small portfolios and cannot recoup their losses on the target firm by gains at the other portfolio companies. Properly understood, the recent campaign by Engine No. 1 with respect to ExxonMobil exemplifies these problems and suggests that activist hedge funds make ill-suited leaders for this form of activism. If so, there may be a strong demand for systematic risk activism among diversified investors, but potential campaigns could remain headless, as diversified investors will themselves be reluctant to lead such a campaign. This article surveys possible answers to this problem (some of which are suggested by the Engine No. 1 campaign). Nonetheless, this problem surrounding the incentives of hedge funds is aggravated by the traditionally independent stance of diversified investors, who are reluctant to join groups or expend funds, and by the inability of potential campaign leaders to charge adequately for their services. This article suggests several means of which to enable such campaigns
Beyond Children Are Different : The Revolution in Juvenile Intake and Sentencing
Get PDFFor more than 120 years, juvenile justice law has not substantively defined the core questions in most delinquency cases — when should the state prosecute children rather than divert them from the court system (the intake decision), and what should the state do with children once they are convicted (the sentencing decision)? Instead, the law has granted certain legal actors wide discretion over these decisions, namely prosecutors at intake and judges at sentencing. This Article identifies and analyzes an essential reform trend changing that reality: legislation, enacted in at least eight states in the 2010s, to limit when children can be prosecuted rather than diverted, and when and for how long they may be incarcerated or kept on probation based on the specific offense alleged or adjudicated.
These reforms are a sharp turn for juvenile law. Contrary to the field’s long emphasis on discretionary decisions not legally tethered to specific offenses, the reforms depend on the charges alleged or proven against a child, and limit judges’ authority at disposition and prosecutors’ at intake.
This Article fills a gap in the academic literature, which has previously focused on recent reforms to criminal, not juvenile, court sentencing of children. Recent juvenile court reforms prevent prosecutors and judges from using wide discretion to incarcerate children for petty offenses, follow social science research demonstrating how overly punitive actions undermine rehabilitative goals, and provide important checks and balances on what are often the most important decisions in individual cases. These juvenile court reforms also enhance the importance of plea bargaining, and thus risk creating the same harms as have been documented with plea bargaining in the criminal justice system. This Article argues that risk is mitigated by limitations on prosecutors’ leverage and that future reforms should include further checks on that leverage
Community-Based Policymaking: Effecting Policy Change Through Lawyer-Leadership
Get PDFTwo years out of law school and equipped with Columbia Law School’s Lowenstein Fellowship,which supported her pursuit of a public interest career, Gabriella Barbosa (CC ’08, CLS ’13) began working as a Policy Director at Los Angeles Unified School District (LAUSD) in District 5.Upon joining, Gabriella and her supervisor formed a parent engagement committee of parentrepresentatives, grassroots organizations, and district leaders to identify and address concernsabout the schools in District 5 through systemic policy reform.
During an early meeting of the Committee, participants from one of the grassrootsorganizations in attendance, Parent Organization Network (PON), raised the issue of DisruptivePerson Letters (DPLs), which some LAUSD schools used to bar recipient parents or guardiansfrom entering school grounds or communicating with school staff without permission. Despitethe letters’ extreme effects, no written policy governed their use—and their use seemed to beconcentrated in low-income communities of color. Gabriella and her team took up the issue. Two years later, after significant coalition building and community-centered problem solving,the LAUSD School Board unanimously passed a resolution reforming the use of DPLs andadopting a new, more collaborative approach to addressing school-family conflicts
Should Human Rights Practice Be Rights-Based?
Get PDFHuman rights scholars and organizations often call on governments to adopt ‘human rights-based approaches’ (HRBAs) to many policy areas, from climate change to health policy. HRBAs identify rights and obligations, and advance the principles of participation, accountability, equality, and non-discrimination. This chapter argues that HRBAs have been exported to many fields without ever being sufficiently integrated within human rights advocacy. We find that NGOs often fail to adhere to foundational human rights principles in their own work, reproducing unjust power hierarchies, objectifying victims, and disempowering rights-holders. Were HRBAs adopted by more human rights organizations, the face of human rights advocacy would change — often dramatically. We conclude with questions that could guide human rights practitioners and scholars to advance reform
Patriot Games: India and China: Brinkmanship in the Realm of Apps
Get PDFIndia recently decided to ban a slew of applications (“apps”), mostly Chinese, accessed on mobile phones and other internet-based devices citing privacy and security concerns arising from the surreptitious mining and profiling of user data that is collected by these apps. It found these activities to be prejudicial to the sovereignty and integrity of India, defence of India, security of the state and public order. China responded that it suspected India’s decision to ban these apps to have violated the obligations that India had committed to under the framework of he World Trade Organization (WTO). Through this paper, we explore certain claims that China could potentially bring against India’s measure under the relevant WTO agreements, especially the General Agreement on Trade in Services (GATS) and various ensuing issues that WTO adjudicating bodies may be confronted with in examining these claims. Assuming that India’s measure is inconsistent with India’s obligations and commitments under the GATS, we further analyse whether India can justify this measure under the GATS national security exception (Article XIVbis) considering that the measure was taken by India at a time of escalating tensions between Indian and Chinese military troops at the border between these two countries. Finally, we seek to answer a counterfactual question: if the immediate background of military conflicts and heightened tensions was missing, how credible is the claim that the activities of certain Chinese apps are prejudicial to the security of the country where the data subjects of these apps are located? We feel that this analysis could be important in the light of other countries imposing a similar ban on apps or devices that are owned by Chinese operators
Establishing State Responsibility in Mitigating Climate Change under Customary International Law
Get PDFAs acknowledged in the Paris Agreement’s Preamble, climate change is a “common concern of humankind.” To tackle the anthropogenic greenhouse gases (GHGs) at source, State governments played a pivotal role in implementing climate change policies. It thus justifies the approach of looking into the solutions to climate change from a state responsibility perspective. As mentioned by James Crawford, “[a]ny system of law must address the responsibility of its subjects for breaches of their obligations.” The finding of state responsibility in mitigating climate change will complement the treaty-based climate change regime, providing grounds for climate change litigations and policy formulation.
More than 50 years ago, the International Court of Justice (ICJ) stated that there are two types of state responsibility in Barcelona Traction: a state-to-state duty and obligations erga omnes (i.e., duties owed to the international community as a whole). Later, the International Law Commission (ILC) codified the state responsibility principles in the Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA). In the context of climate change, the issue is that there is currently no international authority directly recognizing the state responsibility to mitigate climate change, except in climate change treaties and soft law. Thus, this article seeks to broaden such state responsibility by drawing inferences from general principles and establishing new legal grounds. States owe an obligation not to cause harm to one another under the no-harm principle. There is also a due diligence obligation to prevent climate change harm. The joint-and-several duties and common-but-different-responsibility (CBDR) principles emphasize that such duties are shared collectively by States. By adopting the human rights approach, it argues that States’ climate change obligations are erga omnes. The recent trend of creating rights for nature will further contribute to state responsibility’s jurisprudence to mitigate climate change.
For the structure of this article, Part II will explain the background and motivation of research. Part III will briefly introduce the law of state responsibility. Part IV will discuss the details of the duty to mitigate climate change. There is a conclusion in Part V
The Practice and Pedagogy of Carceral Abolition in a Criminal Defense Clinic
No full textCurrent social and racial justice movements have helped to advance deeper interest in the long-standing work of carceral abolitionists. Abolitionists understand that the criminal legal process ineffectively uses state-sanctioned violence, surveillance, punishment, and exclusion to address, and counterproductively perpetuate, the underlying problems that produce violence and harmful behavior in our communities. Abolition focuses on dismantling our current carceral systems and finding completely new, restorative, and collaborative ways of addressing harmful social behaviors. While abolitionist thought has long existed in organizing and non-legal academic spaces, law students and legal scholars are increasingly considering how a carceral abolitionist perspective can inform legal education and practice.
This Article examines whether abolitionist ethics fit into the practice and pedagogy of criminal defense clinics. It argues that although the values of abolition and the institutional role of the public defender are an imperfect fit, criminal defense clinics should teach students how to effectively advocate for their clients through a lens of carceral abolition. Clinical law students can be more than participants who either reinforce or merely critique the criminal legal system; rather, they can pursue their work as “fellow travelers” operating to actively shield individual clients from the weight of the state while also supporting the efforts of organizers who are seeking to transform how we deal with social problems. The Article provides a brief introduction to abolitionist thought, explores the challenges and benefits of incorporating an abolitionist framework into defense clinics, and provides an approach for clinicians seeking to inform their teaching and practice with an understanding of carceral abolition
COVID-19 and Land-based Investment: Changing Landscapes
Get PDFCCSI, IIED, and Namati are partnering on a new initiative to support governments, civil society, local communities, and private sector actors in improving the governance and practices of land-based investments.
Recognizing that more and better private sector investment is widely seen as critical to advancing economic development and achieving the SDGs in low- and middle-income countries, this initiative responds to concerns that land-based investments have resulted in land dispossession, environmental degradation, and conflict.
The Advancing Land-based Investment Governance (ALIGN) project involves: Sustained, in-depth work in up to three countries, including Sierra Leone, to support policy development and implementation, legal empowerment, and dialogue between actors, both at the national level and in selected sites Technical support to governments, civil society, local communities, and other relevant actors, for example through training and support regarding policy development and implementation, legal empowerment, and dialogue between actors Enhancing understanding and improving practices among key actors, globally and in specific targeted contexts, through developing and disseminating innovative responses to key challenges.
In the first phase of the project, priority is being given to monitoring, responding to, and anticipating developments occurring in the context of the COVID-19 crisis. Further partner organizations will also be identified during project implementation.
Blog: Secure Land Rights Are Now More Important than Ever
ALIGN is funded by UK Aid from the UK Government
Responsible Coffee Sourcing: Towards a Living Income for Producers
Get PDFCoffee, one of the world’s most popular beverages, provides livelihoods for at least 60 million people across dozens of countries. Promoting the long-term health, wellbeing, and environmental sustainability of the much beloved coffee sector should be a clear priority.
CCSI has continued its work on coffee sustainability with a 2021 report: “Responsible Coffee Sourcing: Towards a Living Income for Producers.” The report focuses on a critical but under-examined topic: the impact of coffee company sourcing practices on coffee producer and farmworker well-being. The report, commissioned by a long-term investment manager, analyzes the sourcing practices of ten large coffee roasters and retailers, and finds that all of them could do more – and some of them must do much more – to improve producer and worker prosperity. The report also provides analysis on the gap between coffee incomes and living incomes in ten of the largest coffee-producing countries, shedding new light on how deep those gaps are.
The 2021 report offers a complementary path to the suggestions provided in the Center’s 2019 report on the economic viability and sustainability of coffee production. That report was written in response to the sustained decline in world coffee prices. While many consumers willingly pay high prices for coffee, coffee farmers receive a tiny fraction of the final retail price. Producers are price-takers in a global market that has turned against them. These sustained low prices hurt even more as coffee producers begin to bear the brunt of climate change
Law Enforcement Organization Relationships with Prosecutors
Get PDFAlthough police departments and prosecutor’s oces must closely collaborate, their organizational roles and networks, and the distinctive perspectives of their personnel, will inevitably and regularly lead to forceful dialogue and disruptive friction. Such friction can occasionally undermine thoughtful deliberation about public safety, the rule of law, and community values. Viewed more broadly, however, these interactions promote just such deliberation, which will become even healthier when the dialogue breaks out of the closed world of criminal justice bureaucracies and includes the public to which these bureaucracies are ultimately responsible. This chapter explores such organizational interactions and their value