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The Duty to Update Corporate Emissions Pledges
Get PDFFacing both internal and external market pressures, a rapidly growing number of private companies are making public, voluntary, and ambitious pledges to reduce or outright eliminate by a certain date or benchmark their greenhouse gas emissions. Yet, ambition and necessity notwithstanding, nonfulfillment of these emission reduction targets (“ERTs”) is a looming, if not an already realized, concern for markets, which are noticeably and increasingly attuned to the long-term value and climate performance of companies. In the absence of a comprehensive disclosure regime for climate performance and risk, this Note highlights the duty to update—a judicial doctrine that polices forward-looking statements, like ERTs, that become misleading over time—as a bulwark against unfulfilled ERTs that linger in the market and have the potential to mislead investors concerning a company’s climate performance or reputation. In fact, ERTs—which convey clear expectations regarding the quantity of emissions to be reduced, the steps needed to achieve those reductions, and the timeframe of achievement—are uniquely suitable for the duty to update
How to Treat the WTO\u27s Problem with Precedent
Get PDFThis Article argues that the World Trade Organization\u27s Appellate Body (AB), or a successor body, must become more transparent in justifying its decision to rely (or not) on prior decisions. The AB\u27s practice of precedent-which the United States cited as a cause of its decision to paralyze the AB by blocking new appointments-is similar to how it has approached likeness in nondiscrimination cases. It placed a lot of weight on whether two cases (or products) are sufficiently similar to be compared, and it spent relatively less time substantively justifying its treatment of prior cases. Because the WTO does not have a system of stare decisis, the AB and WTO panels generally must explain why they find prior decisions persuasive, rather than simply relying on similarity to justify carrying prior interpretations forward.
The Article begins by examining and evaluating the results of a new study from Jeffrey Kucik and Sergio Puig, the first study to use a large dataset to study the AB\u27s use of precedent. The Article then advances a framework for how WTO dispute panels should evaluate the relevance of prior cases in future disputes. The proposed approach would treat the comparison of cases as merely a threshold inquiry. If two cases are sufficiently alike and one party contests the applicability of the prior decision, then a tribunal must substantively justify its treatment of the prior decision in light of a variety of factors. In some instances, the result may be that the AB or a panel acknowledges that a prior interpretation was wrong and should not be followed. Openly analyzing the persuasive value of prior cases, and acknowledging when those cases should not be followed, would better promote the goals of relying on prior decisions-promoting predictability, transparency, and coherence in the law\u27s application-as compared to deference to prior decisions based only on the similarity of two disputes
Team Production Theory Across the Waves
Get PDFTeam production theory, which Margaret Blair developed in tandem with Lynn Stout, has had a major impact on corporate law scholarship. The team production model, however, has been applied sparingly outside the United States. This article, part of a symposium honoring Margaret Blair’s scholarship, serves as a partial corrective by drawing on team production theory to assess corporate arrangements in the United Kingdom. Even though Blair and Stout are dismissive of “shareholder primacy” and the U.K. is thought of as a “shareholder-friendly” jurisdiction, deploying team production theory sheds light on key corporate law topics such as directors’ duties and the allocation of managerial authority. In particular, the case study offered here shows that board centrality—a key element of team production thinking—features prominently in U.K. corporate governance despite Britain’s shareholder-oriented legal framework. The case study also draws attention to the heretofore neglected role that private ordering can play in the development of team production-friendly governance arrangements
Fiduciary Duties and Corporate Climate Responsibility
Get PDFCorporate-law scholarship for decades has been occupied with agency costs and how to mitigate them. But when I teach the basic business organizations class, starting with agency law and looking at the fiduciary duties of care, loyalty, and full disclosure of any agent to her principal, we explore both costs and benefits of agency relationships. I do so by introducing Ronald Coase’s theory of the firm. Using an example close to most second-year law students’ experience, that of buying a suit for interviews, I contrast Brooks Brothers establishing its own factories (the “make” decision) with Brooks Brothers using supply chains, contractors, and subcontractors (the “buy” decision) to produce its clothing. After discussing Coase’s ideas on transaction-cost economics and managerial hierarchy, I then ask the students how law fits into the picture. How could the fiduciary duties of agents within a firm reduce transaction costs in the “make” decision versus the “buy” decisio
Affirmative Action and the Leadership Pipeline
Get PDFRecent events have brought heightened attention to racial injustice in the United States, which includes among its legacies a dearth of Black people in influential positions that shape society. But at the same time that the United States has turned its attention to diversity in leadership positions, the already narrow pipeline for those from underrepresented groups is likely to narrow even further in the near future. Specifically, the pipeline to influential positions in society typically flows from an elite education. Race-conscious affirmative action in higher education admissions is currently permitted in order for universities to meet their compelling interest in pursuing the educational benefits of a diverse student body. But the legality of affirmative action, which plays a prominent role in creating a diverse student body at elite educational institutions, is under attack, with the lawsuit Students for Fair Admissions v. Harvard expected to soon reach the United States Supreme Court--a Court that is not expected to be supportive of affirmative action--at which time race-conscious affirmative action may be banned nationally.
In this Article, I develop and provide an empirical basis for an expanded understanding of the educational benefits provided by affirmative action: namely, of fostering a pipeline of future societal leaders and professionals. A simple benefit-cost analysis indicates that full consideration of the benefits stemming from the compelling interest of diversity in education would imply fewer not more, restrictions on consideration of race in admissions. Using data on nearly 500,000 college graduates, I demonstrate that the likelihood of earning a professional or graduate degree--an outcome that is closely linked to employment in influential positions--drops off dramatically in the universities attended by the majority of college graduates, as compared with elite universities that use affirmative action. Further, race is a relatively unimportant predictor of professional or graduate degree attainment among graduates of similarly elite schools. Curtailing race-conscious affirmative action would thereby exclude many students from underrepresented minority groups who would successfully earn professional and graduate degrees--and later enter into influential positions that shape society.
As a consequence of the current lack of diversity in leadership, communities of color are left not only with limited power to advance their own interests, but a short supply of professionals to serve their communities with essential legal and medical services, and a restricted network through which those from underrepresented groups can advance their individual success and that of others in their community. Should affirmative action fall, the enrollment of underrepresented minorities in elite institutions will decline, further exacerbating the underrepresentation of minorities in positions of influence. The already existing lack of diversity in leadership roles impairs our nation\u27s efforts to reckon with its history of racial injustice
Does the Law Require Reinterpretation and Return of Revised Genomic Results?
Get PDFKnowledge about the clinical implications of individual genetic variants, genes, and genomics is growing rapidly. As a result, interpretations that were made at one time may later turn out to be incorrect. Awareness of these changes in results can occur in two ways. In the first case, the laboratory initially identified and reported a variant, assigning it some level of disease causation ranging from pathogenic to uncertain significance to benign. Subsequently acquired knowledge then reveals that the variant that was reported is now understood to have a different interpretation, most frequently more benign. In the second case, the laboratory may need to examine the original sequence data to identify variants that had not previously been reported but that have subsequently been classified as likely pathogenic or pathogenic. In either case, someone (whether the provider or the lab) must re-examine the original results
A False Messiah? The ICC in Israel/Palestine and the Limits of International Criminal Justice
Get PDFThis Article challenges the International Criminal Court’s (ICC) quasi-messianic mandate in the Middle-East. It casts doubt over the legal basis and desirability of an ICC intervention in the situation of Palestine. Despite the prosecutor’s formal opening of an investigation in 2021, there exist formidable obstacles to exercising jurisdiction over Gaza and the Israeli settlements. The Office of the Prosecutor (OTP) faces an uphill battle based on complex territorial and temporal dimensions. Indeed, the admissibility hurdles at the ICC of Palestinian statehood, complementarity, gravity and the interests of justice merit close inquiry. This Article also challenges the ICC as an ideal and primary response to human rights abuses of Israelis and Palestinians. So embedded in international discourse is the prosecution preference, scant attention has been devoted to transitional justice in the Middle-East. Ultimately, it will be submitted that international criminal justice (ICJ) is singularly ill-equipped to reckon with the Israeli-Palestinian past. The conflict involves a complex set of actors, legacies, and national claims, that exist far beyond the ICC’s legal reach and normative mission
Preventing Foreign-Judgment Country Hopping with a New Transnational Recognition and Enforcement Standard
Get PDFSince the 1990s, a group of plaintiffs from Ecuador has been involved in litigation with what is presently the Chevron Corporation. During the lawsuit in Ecuador’s courts, the plaintiffs’ lawyers took part in deceptive activities that led to an unreliable judgment against Chevron and has resulted in civil liability for the lawyers and an inability to enforce the judgment against Chevron in the United States for the plaintiff class. Over the better part of the last decade, the plaintiffs’ lawyers have sought and failed to enforce the judgment in several countries outside of the United States, leading to a prolonging of the case for all parties involved and no relief of any kind for the members of the plaintiff class.
These types of extended country-hopping recognition and enforcement issues can be avoided with transnational standards in assessing foreign judgments, including evidentiary standards for an initial enforcement attempt and a standard of review for subsequent attempts. Having these standards in place would serve to ensure that, in cases with problematically obtained foreign judgments, different jurisdictions would apply standards that could deter any temptation to interfere in proceedings leading to the judgment, especially in vulnerable judicial systems, and give plaintiffs and defendants certainty following an initial denial. In turn, this would serve to promote fairness in foreign judgement enforcement proceedings and lead to a more effective system that helps plaintiffs achieve the justice they deserve while also giving defendants a fair chance to avoid exploitation and abuse
Authoritarian International Law in Action? Tribal Politics in the Human Rights Council
Get PDFThe international human rights regime, a product of post- war liberalism, is increasingly falling under the shadow of authoritarian countries that try to influence the regime in favor of their illiberal agendas. This Article uses the United Nations Human Rights Council (HRC) as a prism to examine the changing dynamics among leading authoritarian and democratic actors as they contend to shape global human rights norms and institutions. This Article argues that China, the most resourceful authoritarian party-state, is engaging in what can be understood as tribal international politics, forming coalitions with authoritarian governments and developing countries that have different state interests but share a common distaste for human rights scrutiny. These countries have coalesced as the \u27Like-Minded Group in the HRC and thereby sought to blunt the force of the international human rights system. Democracies and other nonstate stakeholders, however, can and should respond to this challenge by taking a proactive approach that engages more alliances to rebuff these authoritarian advances. This Article contributes to the timely discussion of the possibility of authoritarian international law by discussing how authoritarian countries affect the international legal order, proposing the importance of studying group dynamics in any given political international institution
Breaking the Status Quo of International Design Law: How the United States\u27 Design Law Frustrates the Purpose of the Hague Agreement
Get PDFThis Note explores how the United States\u27 substantive law frustrates the purpose of an international procedural agreement. The Hague Agreement Concerning the International Registration of Industrial Designs revolutionized the process of applying for industrial design protections on a global scale. The Hague Agreement\u27s purpose is to support easily and efficiently acquired industrial design protections in contracting parties to the agreement by simplifying procedures for obtaining protection. The United States-a country without a coherent and dedicated industrial design law-joined this agreement with effect in 2015, allowing designers around the world to easily apply for industrial design protections in the United States. If this seems counterintuitive, that is because it is.
Because of this legal conundrum, the United States executes its responsibilities under the Hague Agreement by applying its design patent law to international industrial design applications. The United States\u27 imputation of design patent law onto industrial design applications firmly places it as an outlier among the rest of the world\u27s industrial design protection regimes. Not only are international designers unfamiliar with US design patent law, the added substantive requirements and associated ramifications of using a design patent standard to review industrial design applications confuses and impedes the international system. Thus, although global designers can now easily apply for design protections in the United States, these applications face challenges that are unknown to the rest of the world\u27s design regimes. Therefore, substantive harmonization shouldered by the contracting parties is the way forward for the Hague Agreement to better streamline the availability of design protections worldwide