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The Remaking of the Supreme Court: Implications for Climate Change Litigation & Regulation
Get PDFWith the nomination of Judge Amy Coney Barrett, the Supreme Court is a Senate vote away from a historic shakeup that will cement a conservative judicial majority for decades. While politicians, scholars, and the media have largely focused on what a Barrett nomination means for the Affordable Care Act and Roe v. Wade, the confirmation of Barrett would significantly impact a wide swath of environmental and climate change cases for years to come. As the Supreme Court is on the brink of a generational transformation, it is increasingly clear that we have a generation—and no longer—to reduce our Greenhouse Gas (GHG) emissions and tackle the climate crisis. Regardless of the winner of the 2020 presidential election, the President, Congress, administrative agencies, and litigants will need to take climate action.
Judge Barrett’s record on the Seventh Circuit is not long, but her academic writing and rulings on judicial standing, the nondelegation doctrine, and agency deference will likely make it increasingly difficult both for environmental plaintiffs to establish standing and for federal agencies to regulate GHG emissions. Barrett’s nomination follows President Trump’s successful appointment of Justices Gorsuch and Kavanaugh, both of whom have signaled a willingness to chip away at longstanding administrative law doctrines that have afforded agencies discretion in regulating GHG emissions.
A transformed, 6-3 Court that replaces Justice Ginsburg with Justice Barrett has significant implications for the ability of Congress and the President to tackle climate change and other pressing environmental challenges—and for the ability of plaintiffs to address those challenges in court
Is Climate Change a Threat to International Peace and Security?
Get PDFThis article argues that climate change’s destabilizing impacts require us to look at existing international governance tools at our disposal with fresh eyes. As such, Council climate action cannot and should not be dismissed out-of-hand. As conflicts rise, migration explodes, and nations are extinguished, how long can the Council remain on the climate sidelines? Hence, my call for a re-conceptualized “Council 3.0” to meet the climate security challenges this century.
This article proceeds as follows. In Part II, I describe and analyze the current state of climate science and the climate-security threats facing the world. This includes an analysis of the Council’s unique role and responsibility to maintain international peace and security within the U.N. Charter system. In Part III, I describe how the Council’s agenda has evolved in recent years to include a focus on non-traditional security threats to include climate change. In doing so, I offer a possible roadmap for Council climate action, showcasing how climate change’s existential threat to the territorial integrity and sovereignty of four Pacific Small Island Developing States (“SIDS”) will stress and test Council engagement on climate change. Part IV addresses the challenges and opportunities to Council climate action. Part V argues that the Council should use its authority under article 39 of the U.N. Charter to affirmatively declare climate change a threat to international peace and security. Doing so activates a series of measured, gradually escalating steps that the Council should take to address the growing international climate governance gap. Rather than dismissing Council climate involvement, I argue that we should adopt an “institutional risk allocation” approach where numerous institutions address climate change in a holistic, complementary way. This will require a rejuvenated and reimagined “Council 3.0” that requires a normative reconceptualization of the Council’s role in upholding peace and security. Part VI concludes
Is Climate Change a National Emergency?
Get PDFThe next decade is critical for climate action. As sea levels rise, wildfires rage, and disasters increase in frequency and scale, it is clear that the U.S. must leverage an expanding menu of legal, policy, and technological tools to address climate change’s destabilizing effects. At present, we remain off-track to reduce our collective greenhouse gas (“GHG”) emissions and avoid irreversible, catastrophic harm. The emissions gap — the difference between the world’s current emissions trajectory and what we must emit to avoid climate change’s most severe consequences — continues to grow. Although President Biden and the 117th congressional leadership have pledged to combat the climate crisis, the Democrats’ narrow Senate majority will make passing comprehensive climate legislation difficult. In the face of likely legislative paralysis, a diverse group of activists, policymakers, and lawmakers have called on the president to declare climate change a national emergency. Is climate change, and its multifaceted impacts, an emergency that warrants using supplemental legal authorities? If so, what federal emergency authorities are available? And what are the normative stakes to democratic governance if a president declares a climate emergency? This Article addresses these questions and others, arguing that climate change is unlike any problem facing the nation and the world. As climate change destabilizes the physical environment, it will force us to look with fresh eyes at all the legal tools available to address climate mitigation, climate adaptation, and how we respond to climate impacts. As such, presidents must consider using all legal authorities, including the National Emergencies Act (“NEA”), to address climate change
\u3cem\u3eDamnatio Memoriae\u3c/em\u3e and Black Lives Matter
Get PDFPolice brutality and killings of Black Americans have recently sparked nationwide protests. Among the many expressions of anger and indignation, one stands out as a unique feature of this wave of the social movement: public scrutiny of civic symbols. Protestors have defaced, torn down, and called for the removal of monuments that represent our country’s racist past, as well as structural racial injustice today. Protestors toppled a statue of George Washington in Portland and spray-painted on it the label “Genocidal Colonist,” while statues of Christopher Columbus were found beheaded in Boston, yanked from a pedestal in St. Paul, and tossed into a lake in Richmond. Some state governments—perhaps surprisingly, given their historical reluctance to participate in progressive social movements—have joined in removing racist symbols from public display. The Mississippi state legislature, for example, voted to redesign its state flag so as to remove a Confederate battle emblem.
The executive branch has responded with furor: On June 26, the Trump Administration issued an executive order excoriating what it sees as “a deep ignorance . . . indicative of a desire to indiscriminately destroy anything that honors our past and to erase from the public mind any suggestion that our past may be worth honoring.” The executive order directs the Department of Justice to prosecute any person or entity “that destroys, damages, vandalizes, or desecrates a monument, memorial, or statue within the United States,” and raises, among other things, serious First Amendment issues by chilling a vital aspect of political expression. This rhetoric culminated in a Fourth of July speech given at Mount Rushmore, where Trump declared that cancel culture and progressives were “tear[ing] down our statues,” “eras[ing] our history,” “indocrinat[ing] our children,” and “trampl[ing] on our freedoms.”
It has escaped both public attention and scholarly commentary that the recent scrutiny of monuments has a direct ancestor—damnatio memoriae. Literally translated as “condemnation of memory,” this Roman legal practice involved the erasure of public figures—usually once-powerful politicians—from all public memory by negating their presence in monuments, statues, and records. This Essay introduces this analogue and aims to accomplish two goals. First, by linking the recent scrutiny of monuments to a legitimate, age-old legal practice, it shows that the destruction of monuments associated with Black Lives Matter (BLM) deserves serious attention and is not a frivolous exercise in cancel culture, contrary to the claims of right-wing commentators. Second, by drawing inspiration from philosophical justifications for punishment, it identifies four values potentially served by memory condemnation: retribution, deterrence, expression of moral disapproval, and rehabilitation of the public space. The Essay argues that rehabilitation provides the best lens through which to view the debate about public memory and the most promising approach for the current progressive social movement to effect transformative change
On Environmental Law, Climate Change, and National Security Law
Get PDFThis Article offers a new way to think about climate change. Two new climate change assessments—the 2018 Fourth National Climate Assessment (“NCA”) and the United Nations Intergovernmental Panel on Climate Change’s Special Report on Climate Change— prominently highlight climate change’s multifaceted national security risks. Indeed, not only is climate change an environmental problem, it also accelerates existing national security threats, acting as both a “threat accelerant” and “catalyst for conflict.” Further, climate change increases the intensity and frequency of extreme weather events while threatening nations’ territorial integrity and sovereignty through rising sea levels. It causes both internal displacement within nations and climate change refugees across national borders. Addressing this new climate– security nexus brings together two historically distinct areas of law: environmental law and national security law. As we properly conceptualize climate change as a security threat, environmental law and national security law, once considered separate and often in conflict, engage with each other in new and complex ways.
The first body of law, environmental and climate change law, largely values the protection and preservation of the human environment via a cooperative federalism model of environmental laws and policies. The second body of law, national security law, largely suspends environmental protections ex ante via myriad national security exemptions within existing environmental statutes. But in the climate–security context, what was once in conflict is increasingly aligned as we look to preserve our common future from all threats, properly defined. If climate change is, indeed, correctly conceptualized as a security issue, how do these two bodies of law interact? Should a future President be afforded national security deference in addressing the threats posed by climate change? Is climate change potentially a national emergency? And if so, what actions can (or should) be taken?
This Article first describes and analyzes climate change as a national security issue, providing an overview of our understanding of climate change, climate science, and climate change’s multifaceted security effects. Second, I analyze where environmental, climate change, and national security law increasingly intersect to include a discussion of relevant U.S. law. Finally, I use one specific example—whether climate change is a national emergency—as a vehicle to highlight how these two areas of law interact in new and surprising ways
Coming Out & Catching Up: An International Review of Workplace Protections for the Lesbian, Gay, and Bisexual Communities
Get PDFThe United States (U.S.) has codified protections against discrimination within the Fifth and Fourteenth Amendments. But, as history has proven, this is not enough. In the U.S., employment-related discrimination is one of the most commonly reported forms of discrimination across all ethnic groups. As a result, in recent years, minority groups have faced real consequences. This trend in the workplace extends across many countries. This Comment provides a comparative analysis of federal workplace discrimination protections for LGBT individuals across nations similar to the U.S. The focus will be on the U.S., the United Kingdom (U.K.), and Canada—all English-speaking, common law countries with historical ties to Great Britain. Learning from this comparison, this Comment argues that the U.S. should adopt protections by judicial interpretations of existing statutes (“litigation prong”) and further by legislative ratification (“legislative prong”)
Popular Participation in the Constitution of the Illiberal State--An Empirical Study of Popular Engagement and Constitutional Reform in Cuba and the Contours of Cuban Socialist Democracy 2.0
Get PDFThis Article considers democratic self-constitution in illiberal states, focusing on the 2019 revision of the Cuban constitution. An important element of that change occurred around the formal and informal constitutional reform debates. This Article attempts to better understand the form, practice, character and influence of these new modalities of popular participation through a close empirical study. The Article first provides a brief conceptual and historical context. It then introduces the empirical study and its methodology. This Article uses data from government web sites, official reports, and social media sites to examine popular participation, its constitution, and its limitations. The Article develops four distinct data sets around which the analysis of popular participation is undertaken. Part IV then considers consequences and applications both within Cuba and beyond as they may point to the further development of the Cuban form of Marxist-Leninist political theory around structures of democratic mechanisms
Resurrecting Magnuson-Moss Rulemaking: The FTC at a Data Security Crossroads
Get PDFWelcome to the digital age, where consumer data is more valuable than gold. In this era of information, companies treat personal data as a prized commodity, leveraging its potential to boost business and engage an ever-growing number of customers. Yet when companies fail to protect the sensitive data that they hold, consumers are left with few avenues to obtain redress for the harms they may have suffered. In an effort to protect consumers, the Federal Trade Commission (FTC) has been policing inadequate data security practices since the early 2000s. Using its broad authority under Section 5 of the Federal Trade Commission Act, the FTC routinely brings enforcement actions against companies that have sustained data breaches, yet could have implemented reasonable security measures to prevent them. In the vast majority of proceedings, the violating entity chooses to settle with the FTC rather than incur the various costs associated with litigation. The orders that accompany the conclusion of every enforcement proceeding typically require the violator to enact a comprehensive data security overhaul. In 2018, such an FTC order was vacated by the U.S. Court of Appeals for the Eleventh Circuit. On the heels of this decision, it is apparent that the FTC must recalibrate its approach to enforcing unlawful data security practices. This Comment contends that the Commission should draw on its substantial experience with data protection and promulgate a rule that transparently specifies the standard by which data security is to be regulated. Although the FTC’s decision to abstain from using its Magnuson-Moss rulemaking authority may have been prudent in the early days of its foray into data security, times have changed. Embracing the heightened public participation interwoven throughout the hybrid rulemaking process, the FTC is fully capable of delineating a data security standard in a reasonable amount of time. And once the rule-based standard is in place, the FTC can reap the benefits of a framework that provides the regulated community with enhanced guidance and the consumer public with greater protection from preventable data harms
Implementing Strategies for the Model Law on Cross-Border Insolvency: The Divergence in Asia-Pacific and Lessons for UNCITRAL
Get PDFThe UNCITRAL Model Law on Cross-border Insolvency was conceived in 1997 with the objective of facilitating the optimal management of cross-border insolvency. Its aim was to do so by providing an adoptable, consistent framework for countries to recognize foreign insolvency proceedings. While the Model Law has achieved some success in promoting cooperation among the different Asian-Pacific states in cross-border insolvency proceedings, the goals of the model law have still yet to be realized to their fullest extent. This is likely the result of states neglecting to fully implement the model law into their respective domestic laws and state judiciaries inconsistently interpreting what legislation they have implemented to enact the model law. This informative Article by Wai Yee Wan and Gerard McCormack examines the different strategies Asia-Pacific states have taken to implement the model law and assesses the reasons for the divergence among the different states. This Article illustrates the complexities and limitations of achieving the objectives of a model law when the path dependency matters and sets each state on a unique course
Unwritten Rules and the New Contract Paradigm
Get PDFProfessor David Skeel opines that Professor Baird’s story is highly persuasive and captures a key dimension of bankruptcy practice that has not been fully appreciated but argues that the story covers a great deal of ground very quickly, and as a result oversimplifies the concepts. Skeel comments on Professor Baird’s piece and puts his insights into a larger context by making two simple points. First, he argues that what’s good for bankruptcy insiders is not always good for everyone, pointing out the dangers of unwritten rules. Second, he argues that bankruptcy’s written rules—both statutory provisions and the parties’ contracts—still matter, and they matter a lot