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Reconciling Regulatory Impact Analyses and Agencies
No full textFederal administrative agencies frequently undertake regulatory impact analyses to provide the basis for promulgating new regulations and justify the reasonableness of regulations upon judicial re- view. Using analytical methods, agencies quantify and compare the relative costs and benefits of regulatory alternatives, seeking policies that maximize net societal benefits, subject to statutory constraints. Loper Bright Enterprises v. Raimondo threatens to upend this methodological check on the rationality of agency action in two distinct ways: first by limiting the permissibility of regulatory impact analysis as a basis for regulation, and second by replacing technical and scientific-informed components of the analysis with judicial interpretations of ambiguous statutory provisions. This threat is most unsettling in the context of environmental regulations, which comprise the greatest share of new federal regulations. The monetization of environmental harms is essential to demonstrate that the benefits of remedial regulations outweigh their costs, and the promulgation of new regulations to confront emerging climatic issues frequently relies on ambiguous statutory provisions. This Article explores the far-reaching effects of Loper Bright that go to the analytical foundations of policy analysis and evaluation. It argues that assessing the impact of Loper Bright requires consideration not only of the consistency between regulatory policies and the agency\u27s enabling statute but also of the harmony between the underlying justification for regulations and the statutory prescriptions regarding the factors that should be considered in regulatory policy design. The Article concludes that, while judicial review will become more scrutinizing of the compatibility between agencies\u27 statutory mandate and the substantive policies underlying regulatory impact analysis, the regulatory state can and indeed must evolve or else risk ossification
Substance over Form: Chancery Court Declares That Post-Closing True-Up Mechanism Requires Independent Accountant to Act as Expert, Not Arbitrator
Full text linkStates-in-Waiting: A Counternarrative of Global Decolonization
Full text linkHow should we, international lawyers, especially with an interest in history, apprehend the experience of, and the horizon of expectation that opened up with, the dissolution of European empires in the decades following the end of World War II? We know that during these decades a Eurocentric international order marked by alien rule and the denial of statehood to large swathes of the world\u27s population was nominally transformed into one marked by sovereign equality. Triumphalist accounts of progress would yoke this transformation to the realization of other good things such as human rights, and economic development.But more commonly today, we think of decolonization as hard work: a struggle against the imperial notions of internationalism that threatened to shape the post-war order. In a similar vein, we are today less likely to think of decolonization as the gradual realization of a Wilsonian self-determination principle. If self-determination became an international right in the 1960s, upon which colonized peoples might have hung their claims to independence, we know that this historical conjuncture between decolonization and the norm of self-determination, came on the back of earlier—often failed—attempts to re-interpret what the Wilsonian norm originally entailed, and of anti-colonial action that unfolded without reference to international law
Class Or Series?: Chancery Court Clarifies Process for Validating Flawed SPAC Stockholder Votes
Full text linkGoverning complexity: A comparative assessment of four governance models with applications to climate change mitigation and adaptation
No full textResponses to ongoing global climate change include economy-wide mitigation efforts and large-scale societal adaptation that demand novel approaches to governance. An array of innovative governance models has been proposed since the late 1900s and early 2000s as scholars observed inadequacies of government-centric and formal legal approaches to natural resource management, complexity and uncertainty, failures of neoliberal economic reforms, and cross-scale institutional arrangements. Four such models have come to dominate the solution-oriented discourse on climate change governance: adaptive governance, transition governance, transformation governance, and anticipatory governance. We compare these models in terms of their origin and applicability to deal with the complexities of climate change. Our particular interest lies in how the four governance models propose to manage complexity and how they envision the role of governments as actors and law as an instrument in steering societal responses to climate change. Our analysis shows that while transition and transformation governance are often portrayed as more readily applicable to climate change mitigation, and adaptive and anticipatory governance to climate change adaptation, this sharp dichotomy does not hold water on closer scrutiny. Rather, all four governance models are applicable to different aspects of climate change mitigation and adaptation. Concerning complexity, all four governance models take some variation of social-ecological-technological complexity as their starting point. Finally on the role of government and law, adaptive governance, transition governance and one branch of transformation governance favour a facilitative role of governments, while another branch of transformation governance calls for a more involved and directive role for governments with heavy legal instrumentation and legal systemic change to match. Anticipatory governance plays more of a supporting role for implementing the other models and can range from facilitative to directive in that respect. With these observations, we hope to clarify the current global discussion over the perspectives offered by the four governance models in governing complexity in the context of climate change and beyond
A Speaker-Based Approach to Content Moderation: The Case of Livestreaming
No full textLivestreams on social media represent a unique form of User-Generated Content. Delivering events and experiences in real time, while turning passive listeners into an involved audience, livestreaming facilitates users’ engagement and participation. Streaming promotes freedom of expression and facilitates diversity and pluralism in news reporting. It further allows users to maintain truth and authenticity in a potentially fabricated realm of Generative Artificial Intelligence (AI). Speakers are eager to capitalize on the instantaneous nature of livestreaming; some are using it to document newsworthy events or promote business interests, and others exploiting it by spreading unlawful and malicious content in pursuit of harmful goals. In the United States, Section 230 of the Communications Decency Act protects social media companies from being sued for their decisions to host or remove a wide range of content. Online livestreams, hence, are primarily governed by private ordering mechanisms: social media platforms’ Terms-of-Use and Community Guidelines, along with their AI-based moderation systems. These private ordering mechanisms, however, tend to take a content-based approach to content moderation. That is, all account holders face similar contractual restrictions that are embedded in a single optimization model. This predictive model assesses the legitimacy of new User-Generated Content based on content-based labeling (lawful vs. unlawful), but overlooks important factors related to the identity of the speaker. Current systems of content moderation are often blamed for lack of accuracy and bias. Livestreaming amplifies these concerns because its exploited by livestreamers, whether for positive, democratic causes or for harmful ones. Accordingly, livestreaming serves as a significant test case for rethinking content moderation approaches. This Article proposes a speaker-based approach to livestreaming moderation. Beyond the current one-size-fits-all-users approach, it suggests leveraging Machine Learning (ML) and AI to personalize the general optimization function of AI-based filtering models, and tailor it to the specific characteristics of the account holders, including their preferences, interests, and past digital activity. Indeed, advanced predictive capabilities are already exploited by social media platforms for content curation purposes, to match content to users, and maximize platforms’ revenues. Accordingly, under the proposed approach, potentially violent users should be subject to stricter moderation thresholds, while non-violent speakers could face more lenient thresholds. This nuanced approach to content moderation could enhance the integrity of livestreams, ensuring that livestreams that foster democratic discourse and informed citizenship outweigh harmful and unlawful streams. real-time nature challenges existing filtering techniques that are mainly designed to address prerecorded content. This vulnerability may b
Inclusive Constitutionalism as a Framework for Remedying Past Discrimination in Higher Education
No full textPotential Impact of Recent Cartel Designations
No full textOn January 20, 2025, President Trump issued Executive Order (E.O.) 14157, directing the Secretary of State to designate international criminal organizations, including drug cartels, as Foreign Terrorist Organizations (FTOs) under the Immigration and Nationality Act (INA) and as Specially Designated Global Terrorists (SDGTs) under the International Emergency Economic Powers Act (IEEPA). On February 20, 2025, the Secretary of State designated the following cartels under both statutes: Tren de Aragua, Mara Salvatrucha (MS-13), Cártel de Sinaloa, Cártel de Jalisco Nueva Generación, Cártel del Noreste (formerly Los Zetas), La Nueva Familia Michoacana, Cártel de Golfo (Gulf Cartel), and Cárteles Unidos
Statutory Contracts
No full textPrivate law offers a unique solution to the problem of long-term fiscal commitment. When Congress enacts a spending program that will take many years to reach fruition, there is a risk of a subsequent Congress or President cutting off funding in the interim. There is no escape from the problem within appropriations law itself One solution, however, is to entrust private sector allies as vessels of long-term commitment. As a matter of political economy, that solution draws on policy-feedback theory. As a matter of law, the solution rests on a mechanism that Congress already uses but has not recognized its potential: statutory contracts. Statutory contracts are spending statutes that promise to pay if a counterparty performs a specified action. Most tax credits, most farm subsidies, and even Medicare work this way. Because statutory contracts are structured like, and implicate, the same normative interests as other contracts, this Article argues that they should be interpreted according to principles of contract law. Contract law provides remedies for a subsequent government\u27s breach that public law cannot match. At the same time, not all statutory contracts should be enforceable, just as some executive branch contracts are held unenforceable when they constrain subsequent policy freedom